IN THE CONSTITUTIONAL COURT OF SOUTH AFRICA

CASE CCT no.

SOUTH GAUTENG HIGH COURT CASE NO: 2768 /2010

EX PARTE MINISTER OF HOME AFFAIRS AND 4 OTHERS APPLICANTS and

EMMANUEL TSEBE 1ST RESPONDENT

JERRY OFENSE PITSOE (PHALE) 2ND RESPONDENT

THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 3RD RESPONDENT

THE MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION 4TH RESPONDENT

GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA 5TH RESPONDENT

In the matter between:

EMMANUEL TSEBE 1ST APPLICANT

SOCIETY FOR THE ABOLITION OF THE DEATH PENALTY IN SOUTH AFRICA 2ND APPLICANT and

THE MINISTER OF HOME AFFAIRS 1ST RESPONDENT

THE DIRECTOR-GENERAL DEPARTMENT OF HOME AFFAIRS 2ND RESPONDENT

MR GEORGE MASANABO, ACTING DIRECTOR OF DEPORTATIONS 3RD RESPONDENT

MISS ANN MOHUBE, ACTING DEPUTY DIRECTOR LINDELA HOLDING FACILITY 4TH RESPONDENT

MR JOSEPH SWARTLAND, ASSISTANT DIRECTOR LINDELA HOLDING FACILITY 5TH RESPONDENT

BOSASA (PTY) LTD t/a LEADING PROSPECTS TRADING 6TH RESPONDENT

THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 7TH RESPONDENT

THE MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION 8TH RESPONDENT

GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA 9TH RESPONDENT

AND CASE NO. 51010/2010

In the matter between:

JERRY OFENSE PITSOE (PHALE) APPLICANT and

THE MINISTER OF HOME AFFAIRS 1ST RESPONDENT

THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS 2ND RESPONDENT

BOSASA (PTY) LTD t/a LEADING PROSPECTS TRADING 3RD RESPONDENT

THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT 4TH RESPONDENT

THE MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION 5TH RESPONDENT

GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA 6TH RESPONDENT

FOUNDING AFFIDAVIT

I the undersigned

MODIRI MATTHEWS

do hereby make oath and state that

1. I am a Chief Director (Inspectorate) in the employ of the Department of Home Affairs

(“the Department”), care of 270 Maggs and Petroleum Streets, Waltloo, Pretoria.

The applicant, as the Minister of Home Affairs (“the Minister”), is the Executing

Authority and political head of the Department.

2. I am duly authorised to depose to this affidavit and to bring this application for leave

to appeal directly to this Court on behalf of the Minister.

3. The facts herein are, unless the contrary appears from the context, within my own

knowledge and are true and correct.

4. Where necessary I refer to information which I believe to be true and correct and

which is confirmed by the relevant officials within the Department who bear direct

knowledge in respect of those matters. Insofar as I deal with issues of law, I do so on

advice given to me and to the Department by our legal representatives, which advice

I believe to be true and correct.

5. This affidavit addresses the following matters:

5.1 the parties who are the same as those who were cited in the South Gauteng

High Court, whose judgment and order is sought to be appealed against;

5.2 the nature of this application and the relief sought;

5.3 a brief description of the factual background; 5.4 the legal submissions relevant to this application;

5.5 conclusion.

The Parties

6. The Minister who is the first applicant herein. The Minister was cited as the first

respondent in the proceedings in the South Gauteng High Court (“the High Court”)

on the basis that the Immigration Act 13 of 2002 (“the Act”) accords to the Minister

certain responsibilities that are consonant with the powers and functions assigned to

her by the President of the Republic of South Africa (“the President”) under section

91 of the Constitution of the Republic of South Africa (“the Constitution”), read with

section 85(2) of the Constitution. These powers and functions include the making of

regulations as prescribed in section 7 of the Act, the formulation of policy pertaining

to immigration matters, and the taking of decisions as prescribed in various

provisions of the Act.

7. The remaining applicants for direct access to appeal to this Court are parties who are

cited in the High Court application as the second to sixth respondents in the Tsebe

application and as the second and third respondents in the Phale application. They

are officials whose responsibilities are governed by the Act.

8. The Minister of Justice and Constitutional Development who also represented the

Government of the Republic of South Africa is cited herein in his official capacity as

the political head of the Department of Justice and Constitutional Development. He

may have an interest in the relief sought in this application, being the Cabinet member responsible for matters relating to extradition. This application will be

served on the Minister care of the Office of the State Attorney Cape Town and

Johannesburg.

9. The Minister of International Relations and Co-operation is cited in her official

capacity as she may have an interest in the relief sought in this application, being a

member of the national executive whose assigned functions include responsibilities

for maintaining sound regional, continental and international relations with other

sovereign states. This application will be served on the Minister care of the Office of

the State Attorney, Johannesburg.

10. The applicants in the High Court are one Emmanuel Tsebe who is now deceased,

Jerry Ofense Pitsoe (commonly referred to as Phale), and the Society for the

Abolition of the Death Penalty in South Africa. They have a direct and substantial

interest in the constitutional matters that form the basis of this application. This

application will be served on these parties at the offices of their respective attorneys

of record.

The nature of this application and the relief sought

11. This application for leave to appeal directly to this Court arises from the application

of the principles and interpretation that the Full Bench of the High Court, in its

judgment and order of 22 September 2011, placed on

11.1 the constitutional protections afforded to Tsebe and Phale in the Bill of

Rights, 11.2 the constitutional and statutory duties, functions and responsibilities of the

Minister with regard to the deportation of prohibited and undesirable

persons, within the context of South Africa’s obligations under customary

international law, and

11.3 the injunction in section 233 of the Constitution that courts, when

interpreting legislation, must prefer any reasonable interpretation of that

legislation that is consistent with international law over any alternative

interpretation that is inconsistent with international law.

12. The judgment and order of the High Court are annexed hereto marked “A”. An

appeal to the Supreme Court of Appeal would not lead to finality in this matter. This

matter is one of constitutional significance and import as it concerns the application

and interpretation of statutory enactments that seek to give effect to South Africa’s

domestic, regional and international obligations as mandated in the Constitution.

There is a sense of urgency in having the matters raised herein decided in this Court

because deportations occur on an ongoing basis, and the public interest matters

noted herein are significant enough to merit an expedited resolution of the issues.

13. The relief sought is that of setting aside the above-mentioned judgment and order of

Full Bench of the High Court and replacing it with an order dismissing the application.

A brief description of the factual background

Tsebe 14. The facts relating to Tsebe, who was a citizen of Botswana, are that on or about 20

July 2008 he allegedly killed his common law wife, one Ms. Concilliah S Rampape by

assaulting her with a machete and a wooden stick. He then fled to South Africa

where he was eventually arrested by a member of the South African Police Service

on 30 July 2008 for purposes of deportation to Botswana. Before his arrest, he twice

crossed the border into Botswana, returning each time without detection. He died in

detention on 28 November 2010 before the main application was heard in the High

Court.

15. Tsebe was made aware of the fact that he was arrested because he had contravened

section 49(1) (a) of the Act. He was also charged with contravening section 49(14) of

the Act in that he had falsely represented that he was entitled to remain in the

Republic. There never was any doubt, therefore that the purpose of his arrest and

detention was that of deporting him as a consequence of his illegal entry and stay in

the Republic in accordance with the provisions of section 32(2) of the Act. There was

due compliance by the Department with the provisions of section 8 of the Act with

respect to the review by the Minister of the decision to deport.

16. The Notice of Motion filed in the High Court pertinently sought an order against his

deportation or removal from South Africa without an assurance or undertaking from

the Government of Botswana regarding the death penalty not being imposed as a

sentence.

17. The Government of Botswana requested Tsebe’s extradition on 28 August 2008.

Due to the fact that the Government of Botswana declined to give an assurance or undertaking that the death penalty would not be sought against Tsebe, the Minister

of Justice and Constitutional Development who is cited as the seventh respondent in

the main application, refused to extradite Tsebe to Botswana.

Phale

18. The facts in the Phale case, who is a citizen of Botswana, are similar. He allegedly

killed his former girlfriend on or about 27 September 2009 and fled to South Africa.

He was arrested at a church service in South Africa and handed over to the police.

He was found to be in possession of a South African identity document, and has been

charged in the Magistrate’s Court for being in possession of fraudulently obtained

documents. The allegations made by Phale that he was adopted by his aunt who is a

South African citizen are disputed by the State and form the nub of the charges that

have been preferred against him. He is also sought by Interpol, and is currently out

on bail.

The South Gauteng High Court

19. In proceedings to hear the Tsebe application the High Court took the view that

fundamental issues of constitutional and public importance were at stake. It also

held the view that the questions of law in dispute were likely to arise again. The

Minister and Department share this view, hence this application of direct access to

enable these and related matters to be finally decided.

The merits

20. In essence, the judgment of the High Court prohibits the Minister from implementing

the provisions of the Act as she is enjoined to do by section 85(2)(a) of the

Constitution; constrains her capacity, together with her Cabinet colleagues, to

develop and implement national policy that is aligned to building sound relations

with the Government of Botswana and to promoting crime prevention strategies

both within our borders and the Southern African Development Community (SADC).

21. The overall effect is that the judgment and order of 22 September 2011 emasculate

the Minister and Director-General’s ability to effectively implement sections 29 and

30 of the Act in instances where

21.1 deportation to a country that imposes capital punishment is involved, and

21.2 the implicated provisions of the Act have not been declared to be invalid for

lack of consistency with the Constitution.

22. This has created uncertainty in the manner in which the Act is required to be applied

to persons who, as prohibited or undesirable persons, stand to be deported in terms

of the Act.

The affected human rights

23. What has led to this legal conundrum is the constitutional injunction that everyone

has the right to life, which in the circumstances pertaining to the deportation of

Phale must be read in conjunction with the right to dignity and the right to freedom

and security of the person.

24. The latter right in particular:

24.1 prohibits the arbitrary deprivation of freedom or deprivation of freedom

without just cause;

24.2 prohibits detentions without trial;

24.3 endorses the right to be free from all forms of violence from either public or

private sources;

24.4 upholds the right not to be tortured in any way; and the right not to be

treated or punished in a cruel, inhuman or degrading way.

25. International law recognises the above constitutional protections that are afforded

in the South African Bill of Rights. Our Constitution in section 232 requires our courts

to apply customary international law unless such law is inconsistent with the

Constitution or an Act of Parliament. Section 233 of the Constitution broadly requires

that legislation must be interpreted in consonance with international law. South

Africa cannot, however, in its application and interpretation of its laws, impose its

values and its interpretation of what constitutes the rule of law on another sovereign

state such as Botswana.

26. The approach to this Honourable Court therefore is, at one level, aimed at

ventilating the debate that arises with respect to the protection of basic human

rights, the giving of effect to the Constitution, and the reconciliation of the

application of domestic law with the prescripts of international customary law. The interpretation that the High Court placed on these elements is what is challenged in

these proceedings.

27. The underlying debate that the legal principles and prescripts that the High Court

applied in the Tsebe and Phale matter, raises issues on

26.1 the recognition of the sovereignty of other states and the extent of the

obligation on other states to apply the international standard that recognises

the right to life and the prohibition against cruel, inhuman and degrading or

unusual punishment and torture;

26.2 whether a request for an assurance would in and of itself not constitute an

undue interference with and fettering of the independence of the judiciary of

the Republic of Botswana by the executive of that country;

26.3 the central concern of the Minister with regard to whether or not the facts of

the Tsebe and Phale deportations fall within the category for which

Mohamed and Another v President of the Republic of South Africa and

Others 2001 (3) SA 893 (CC) (Mohamed) serves as authority;

26.4 whether an obligation rests on the Minister and the Department to ensure

that a prospective deportee will not face the death penalty in the country to

which he or she is to be deported;

26.5 whether on the facts of Phale’s case, exceptional circumstances exist allowing

for his deportation despite the absence of an undertaking from the

Government of Botswana.

28. The matters raised above constitute largely legal argument. I am advised that there

is no rule of customary law that prohibits the death penalty, nor is there a human

rights convention that outlaws the death penalty. There is therefore no legal

obligation on the Government of Botswana to accede to South Africa’s request that

it furnish an undertaking or assurance that the death penalty will not be imposed on

Phale.

29. South Africa cannot be seen as dictating terms to another sovereign state or its

judiciary. This factor must be balanced against South Africa’s obligations in

international law to suppress crime, create a safe environment for its nationals and

to protect victims of crime generally. The view of the Department is that even if the

executive of the Government of Botswana gave an assurance, on an application of

the separation of powers doctrine, this does not provide a guarantee that the

judiciary of that country would be bound by that assurance.

30. This particular case is one that cries out for judicial guidance on the extent of South

Africa’s obligations to fugitives from justice who are charged with murder in the

countries from which they fled and the rights of the victim’s family to justice and

closure. The intention of the Department has at all times been that of deporting

Tsebe and Phale. No ulterior motive or purpose underpins this deportation.

31. With regard to section 12(1) (c) and (d) of our Constitution, Phale has not, to my

knowledge, presented substantial and sustainable evidence that he faces torture or

cruel, inhumane or degrading treatment or punishment should he be returned to

Botswana to stand trial. There is an internationally recognised prohibition against torture. Phale’s circumstances do not, however, appear to fit into this category of

protections.

32. This is also a matter that, in the view of the Minister and the Department, ought to

be distinguished from the circumstances of Mohamed. Are the court’s dicta in

Mohamed to be applied in a doctrinal fashion? Are regular deportations for common

law offences, such as in the case of Tsebe and Phale, not to be treated differently?

The far reaching effect of the Mohamed judgment is of concern to the Department

and the Minister.

33. The precedent that the High Court judgment has set with regard to fugitives from

SADC countries who are charged with capital offences of a non political nature

seeking shelter in South Africa is a reality that our criminal and justice system must

address in a comprehensive manner. The High Court judgment failed to give due

weight to this factor.

34. I am advised that full legal submissions on the above matters will, with leave of this

Honourable Court, be presented at the Court’s direction.

The public interest

35. Phale’s presence in South Africa is not in the public interest. The only legal

instrument that prevents Phale’s deportation is the judgment and order of the High

Court. The South African government has certain constitutional responsibilities as

underscored by the principles on national security which are set out in section 198 of

the Constitution read, inter alia, with sections 12(1) and 205(3) thereof. Even in international law, there is a recognition that a fair balance must be reached between

the protection of the individual’s basic human rights and the protection of the rights

of the community at large.

36. There is the consideration that the Constitution also provides for the protection of

the rights of persons in South Africa to be free from all forms of violence from either

public or private sources, as provided for in section 12(1)(c) of the Constitution.

Harbouring a fugitive from justice, who is sought by Interpol and the Government of

Botswana, to answer to charges of killing his girlfriend, puts the South African public

at risk. The potential gravity of this risk must be weighed against the individual rights

of Phale to an assurance that he will not face the death penalty in Botswana.

37. The Minister must apply her mind to the possibility of a similar offence being

committed in South Africa by the same fugitive from justice, and she has indeed

charged all of us to give advice on this matter. She is acutely aware that her response

to the judgment of the High Court must be consonant with international law and our

Constitution, but also the dicta of the Constitutional Court with regard to negligence,

the duty of care and omissions to act that emerged from the jurisprudence in

Carmichele v Minister of Safety and Security 2001 (4) SA 938 (CC).

38. In the interests of clarity, I hasten to reiterate that Phale is currently out on bail in a

matter where he is charged with being in possession of a fraudulent South African

identity document. Once those proceedings are finalised, and even if he is convicted,

he becomes a free man on completing any sentence imposed. The maximum penalty for this offence, as prescribed in section 49(1)(a) of the Act is a fine or imprisonment

not exceeding 3 months.

The practical implications of the order

39. As matters stand, there is an anomaly that arises from the order prohibiting the

Minister from deporting Phale to Botswana, and the fact that the Minister cannot

have Phale indefinitely detained in a South African correctional facility in the hope

that the Government of Botswana will tender the required undertaking. The Minister

is compelled to have Phale released, as by law he cannot be tried in South Africa for

an offence committed in Botswana.

40. I am advised that the main concern of the Minister and the Director-General is that

this judgment places a particular statutory construction on the powers, functions

and obligations that are prescribed under the Act. Unless the judgment is

reconsidered and revised by this Honourable Court, the Minister and Director-

General will be bound by the precedent that it sets.

41. The Minister and Director-General’s view is that a precedent of this nature would

inhibit the taking of decisions on similar deportation matters, and prevent the

Department from giving effect to the intention of Parliament when it, inter alia,

enacted sections 29 to 31 of the Act.

42. This view is bolstered by the facts of the Phale case, where no clear and reliable

evidence was tendered to show that Phale would not be afforded a fair trial or just

and appropriate punishment in the event that he is convicted. The High Court relied exclusively on the principles, conventions and prescripts of international law and

precedents whose facts differ from those of Phale’s case, in upholding his right to life

in the event he is brought to trial in Botswana.

43. It is the view of the Minister and the Department that the criminal justice system of

Botswana accords an accused person the rights that are accorded accused persons in

open and democratic societies that are based on human dignity, equality and

freedom. The fact that in Botswana the death penalty is a competent sentence for

murder committed without extenuating circumstances does not detract from this

view.

44. A related concern that has been expressed by the Minister and Departmental

officials in meetings to assess the width and depth of the judgment of the High Court

is that the judgment might encourage the abductions of fugitives from justice or in

extreme circumstances, revenge killing on South African soil of fugitives from justice

from other countries. Another possible consequence of the judgment is that it might

spawn unlawful renditions of fugitives from justice by misguided elements in the

security forces.

45. The converse of this is of course the possibility that a fugitive such a Phale, because

of the proximity of Botswana and the ease with which the border can be crossed,

might be tempted to dispose of witnesses in Botswana, knowing that he has a safe

sanctuary in South Africa in terms of the Court order. It cannot be that the public’s

interest to safety and security is secondary to Phale’s rights based on an apprehension that he might receive the death sentence if convicted of murder in

Botswana.

46. Phale stands to be declared an undesirable person under section 30 of the Act as

soon as the trial arising from the charges he faces under section 49(1) of the Act has

been finalised. The Minister has at present no reason to waive any ground of

undesirability that attaches to Phale’s circumstances or grant an exemption. In like

vein, the Director-General is not minded to apply the terms of sections 29(2) or 32

(1) of the Act in allowing Phale to remain in South Africa.

The formulation of policy and its alignment to international law and inter-state relations

47. One of the challenges facing the Minister and the national executive from a policy

perspective within the contemplation of section 85(2) (b) is that of reconciling

domestic policies on the suppression of crime, with the utility value of deportations

of prohibited persons. The High Court had little regard to the policy objective of

deporting of fugitives from justice.

48. These policy formulation and implementation powers are mandated, inter alia, by

section 85(2)(b) of the Constitution, which accords to the executive arm of

government the competence to develop and implement policy. Parliament gives

effect to these policies by, inter alia, enacting legislation such as the provisions of the

Act, and related legislation to curb crime and enhance mutual assistance among and

between States for the suppression of crime at a global level.

49. The impact of international law instruments on these policy decisions has to be

carefully considered by an adjudicating court or tribunal on a case by case basis.

Conclusion

50. There are inherent conflicts that arise with respect to the discharge of the

constitutional, statutory and international obligations that have been ventilated in

the body of this affidavit. It is in an effort to create consistency of interpretation and

application in a rational and constitutionally justifiable manner that the applicants

seek direct access to this Honourable Court.

51. The undue weighting that the High Court gave to the constitutional protections to be

afforded a prohibited person who is a fugitive from justice, despite clear evidence

that real and intractable conflicts with both the Constitution and the Act would

materialise, have led to legal and constitutional uncertainty with regard the

performance by the Minister of her constitutional obligations and statutory

responsibilities.

52. The intention of the Minister as she executes her statutory responsibilities is not to

engage in a disguised extradition of Phale, but rather to apply the law in a

reasonable manner having taken due cognisance of the views that have been taken

in international law and by this Honourable Court in S v Makwanyane and Another

1995 (3) SA 391 (CC) (Makwanyane) and Mohamed on extraditing or deporting a

fugitive from justice (and who therefore is a prohibited person in South Africa), to a country where the death penalty is a prescribed sentence for murder without

extenuating circumstances.

53. We have been advised by the Government of Botswana that there are at least five

other fugitives from justice who have fled to South Africa. The enormity of the

impact of the High Court judgment on the treatment of offenders such as these

cannot be underestimated. South Africa’s wide northern borders, and the fact that

the death penalty finds application in most of the SADC states on our borders, is a

factor that neither the Minister, the Department, Parliament nor the Court can

ignore.

54. The issues raised in this application for direct access to appeal against the judgment

of the High Court seek to apply the principle of the separation of powers to the

power and functions of the Minister and Department. I believe that a case for the

exceptional treatment of Phale can be made out, with leave of this Court, in an order

that provides just and equitable relief to all parties.

55. It is only this Court that can refine the ratio of the Makwanyane and Mohamed

decisions and interpret the legal principles that found application in those cases in

this matter in a manner that is not dogmatic or inflexible. The Department will, with

leave of this Court, readily make any further submissions that might further assist

the Court in granting just and equitable relief in this instance.

56. In the premises it is submitted that the Minister and the Departmental officials who

constitute the applicants for access to appeal directly to this Honourable Court have

made out a case for the relief in the Notice of Motion.

______

MODIRI MATTHEWS

THUS DONE AND SIGNED BEFORE ME AT ON THIS THE 4TH DAY OF NOVEMBER

2011, THE DEPONENT HAVING ACKNOWLEDGED THAT HE KNOWS AND UNDERSTANDS THE

CONTENTS OF THIS DECLARATION AND CONSIDERS IT BINDING ON HIS CONSCIENCE, THE

REGULATIONS CONTAINED IN GOVERNMENT NOTICE NUMBER R1258 OF 21 JULY 1972, AS

AMENDED, AND GOVERNMENT NOTICE NO R1648 OF 19 AUGUST 1977, AS AMENDED,

HAVING BEEN COMPLIED WITH.

______

COMMSSIONER OF OATHS