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Founding Affidavit-17904.Pdf 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.
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