In the Constitutional Court of South Africa

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

In the matter between:

EMMANUEL TSEBE First Applicant SOCIETY FOR THE ABOLITION OF THE DEATH PENALTY Second Applicant and

THE MINISTER OF HOME AFFAIRS First Respondent THE DIRECTOR-GENERAL DEPARTMENT OF HOME AFFAIRS Second Respondent MR GEORGE MASANABO, ACTING DIRECTOR OF DEPORTATIONS Third Respondent MISS ANN MOHUBE, ACTING DEPUTY DIRECTOR LINDELA HOLDING FACILITY Fourth Respondent MR JOSEPH SWARTLAND, ASSISTANT DIRECTOR LINDELA HOLDING FACILITY Fifth Respondent BOSASA (PTY) LTD t/a LEADING PROSPECTS TRADING Sixth Respondent THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Seventh Respondent THE MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION Eighth Respondent GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Ninth Respondent and in the matter between:

JERRY OFENSE PITSOE (PHALE) Applicant and

THE MINISTER OF HOME AFFAIRS First Respondent THE DIRECTOR GENERAL, DEPARTMENT OF HOME AFFAIRS Second Respondent BOSASA (PTY) LTD t/a LEADING PROSPECTS TRADING Third Respondent THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT Fourth Respondent 3

THE MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION Fifth Respondent GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Sixth Respondent

APPLICANTS’ INDEX TO HEADS OF ARGUMENT ______

SECTION PAGE

Introduction 8

Structure of Heads 9

A. Context and Background 12

B. Summary of Argument of Government 28

C. Immunity sought and obtained from the Court a quo 31

D. Contentions relied on by Tsebe and Phale before the court a quo 42

Tsebe 42 4

E. General contentions on behalf of the Government (more accurately

stated) 47

F. Certain distinctions between circumstances in Makwanyane and

Mohamed on the one hand and Tsebe and Phale’s circumstances

on the other 51

G. Approach to circumstances of this case 58

H. Allegations by the Minister of Justice before the Court a quo 60

I. Extradition as executive authority under separation of powers 65

Ministers allegations that the Court a quo ignored 71

J. Protection of Phale’s rights to life, dignity and the prevention of

treatment or punishment in a cruel, inhuman or degrading manner

(justification of limitation) 74

PAGE

K. Public opinion 81

L. Sources of International Law, the Convention against Torture and

other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”)

and the Obligations of Botswana and South Africa 83

The lawful sanction qualification 84

Conclusion 89

List of Authorities 91

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

In the matter between:

EMMANUEL TSEBE First Applicant SOCIETY FOR THE ABOLITION OF THE DEATH PENALTY Second Applicant and

JERRY OFENSE PITSOE (PHALE) Applicant and

THE MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION Fifth Respondent GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Sixth Respondent

APPLICANTS’ HEADS OF ARGUMENT

INTRODUCTION

1. For convenience the Full Bench of the South Gauteng High Court who

delivered the judgment under appeal is referred to as “the court a quo”. The

original applicants before that court are referred to as “Tsebe” and “Phale”.

The respective applications before that court are referred as the “Tsebe

matter” and the “Phale matter”.

2. At this stage the following documents in the Phale matter do not form part of

the record, but ought to be included.

2.1. Annexures “JP1” to “JP7” to the founding affidavit;

2.2. The answering affidavit of the Minister of Justice as well as the

annexures thereto;

2.3. The confirmatory affidavits of Schutte, Senoge, Leonard SC, Mabaso

and Molekoa; 9

2.4. The notice of a counter application;

2.5. The answering affidavits on behalf of the Minister of Home Affairs and

the Director-General of Home Affairs (“the D-G”) with annexures;

2.6. Phale’s replying affidavit.

2.7. The judgement of Southwood J in the North Gauteng High Court

interdicting the re-arrest of Phale and ordering his release on bail on

certain conditions.

3. In these heads relevant paragraphs will be quoted, and reference will be

made to the (missing) “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.

STRUCTURE OF HEADS

4. These heads are structured as follows:-

4.1. Under “A”, the background to and context of the application before the

court a quo will be set out. This will demonstrate, inter alia, that the

overall dispute is regulated directly by the provisions of the

Constitution. The dispute lies between the Government of the Republic

of South Africa (“the Government” or national executive) in the 10

exercise of their collective responsibility, on the one hand, and Phale

(and persons in his position) on the other. It extends beyond the

provisions of any individual statute other than the Constitution.

4.2. Under “B”, we introduce the argument of the Government in a brief

summary.

4.3. 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.

4.4. Under “D”, we set out the principal submissions made by Tsebe and

Phale before the court a quo.

4.5. Under “E”, we deal with the general contentions made by the

Government before the court a quo.

4.6. Under “F”, we deal with certain features which distinguish the facts and

circumstances in the Tsebe and Phale matters from those which faced

the court in the Makwanyane and Mohamed cases.

4.7. Under “G”, we deal with the approach to this constitutional matter

arising from the decisions in Makwanyane‟s case and Mohamed‟s

case. 11

4.8. 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.

4.9. Under “I”, we establish that the power vested in the Minister, to order

or not order extradition, is an aspect of executive authority exercised

under a constitutional separation of powers.

4.10. Under “J”, we justify the limitations to Phale’s rights should he be

surrendered without the undertaking raised in Mohamed‟s case.

4.11. Under “K”, we consider the role of public opinion in all the relevant

facts and circumstances above.

4.12. Under “L”, we deal with the submissions made on behalf of Tsebe and

Phale involving peremptory requirements under international law. 12

CONTEXT AND BACKGROUND

5. 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.

6. 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

judgement”) 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 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 13

Botswana, which do not include the right not to be put to death by the

execution should they be convicted”. 1

7. In Mohamed‟s case 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 be unconstitutional”.2

8. 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.3 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.4

9. The Court concluded, in paragraph [42] of the judgment, that:

9.1. Deportation is usually a unilateral act while extradition is consensual;

1 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. 2 See Mohamed judgment: para 47, p 913 F-G. 3 See Mohamed judgment: para 53, p 915 C/D to E/F. 4 See Mohamed judgment: paras 48 and 53. 14

9.2. The different procedures prescribed for deportation and extradition

may be material in specific cases (particularly where the legality of the

expulsion is challenged) but they were not relevant in the

circumstances of that case;

9.3. 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;

9.4. 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.5

10. 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.

11. So too were the Minister of Home Affairs, the Minister of Justice and

Constitutional Development and the Minister of International Relations and

Co-operation;

5 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”. 15

11.1. The first, being 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 Director-General of the

Department of Home Affairs was also cited in his official capacity and

because of his responsibility for administering the Immigration Act);

11.2. The second, because of his responsibility for the administration of the

Extradition Act 67 of 1962 (“the Extradition Act”) and the actions of the

Department of Justice and Constitutional Development;

11.3. The third, because of her responsibility for the actions of the

Department of International Relations and Co-operation.

12. All three ministers were cited in their capacities as representatives of the

Government of the Republic of South Africa, which this Court, in Mohamed,

had held responsible for obtaining an assurance.

13. In passing it is worth noting that:-

13.1. The assurance described in paragraph [42] of the Mohamed judgement

required an exercise of international diplomacy and foreign relations;

13.2. Neither the assurance nor this exercise are referred to in any way by

the provisions of the Extradition Act or the Immigration Act; 16

13.3. The assurance described in that paragraph was defined with reference

to the causation of a death penalty to a person removed to another

country; that is, an assurance constituted a means of avoiding

execution as a consequence of surrender;

13.4. 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”;

13.5 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.6

13.6 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.7

6 See Mohamed judgment: para 53, p 915 C/D to E/F. 7 See Immigration Act: s 1(b), (c), (e) and (o). 17

14. At the material times both Tsebe and Phale were nationals of Botswana,8 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.9 The death sentence would have been a competent sentence

upon their conviction in Botswana.

15. 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 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.

16. 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.

17. The definition of crime of murder alleged against them, and punishment

thereof are governed by s 202 and s 203 contained in Division IV of the

Botswana Penal Code. These provide as follows:

8 See infra. 9 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”. 18

“202 Murder

Any person who of malice aforethought causes the death of another

person by an unlawful act or omission is guilty of murder.

203 Punishment of murder

(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.”

18. Murder is an extraditable offence in terms of the relevant extradition treaty

which exists between the Republics of Botswana and South Africa,10 and in

terms whereof the extradition of Tsebe and Phale was requested.

19. Article 6 thereof provides as follows:

10 The Treaty, which was concluded during 1969, appears in Vol 3, p 229 to 238. 19

“ARTICLE 6

CAPITAL PUNISHMENT

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.”

20. This treaty makes no provision for either a request for or provision of the

undertaking required in Mohamed‟s case.

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

International Directions11, the Minister of Justice at that time (Mr M.E. Surty)

directed a request to the 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.12”

22. 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”.

11 See annexure “JTR6”: Vol 4, p 325-336. 12 See annexure “JTR7”: Vol 4, p 337-338. 20

23. 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”.13

24. 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.

25. The sections referred to above provide as follows-

“51A. Director of Public Prosecutions

(1)…

(2)….

(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;

13 See annexure “JTR9”: Vol 5, p 388-389. 21

(b) to take over and continue any such criminal proceedings

that have been instituted or undertaken by any other

person or authority; and

any such criminal proceedings instituted or undertaken

by himself or herself or any other person or authority.

(4) …

(5)…

(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:

Provided that-

(a) where any other person or authority has instituted

criminal proceedings, nothing in this subsection shall

prevent the withdrawal of those proceedings by or at the

instance of that person or authority, and with the leave of

the court; and

(b) before exercising his or her powers in relation to cases

considered by the Attorney-General to be of national

importance, the Director of Public Prosecutions shall

consult the Attorney-General.”

(Counsels’ underlining.) 22

26. 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.14

27. On 25 August 2009, the Minister of Justice made an order, in terms of s 11(b)

of the Extradition Act, that Tsebe would not be surrendered to the Republic of

Botswana “to stand trial on a charge of murder in contraventions of s 202 of

the Penal Code ...”15

28. In making this order, 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) any invocation of the Minister’s powers to

order Tsebe to be surrendered to Botswana would have been unlawful,

because 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”.16 For reasons set out further below,

this advice may have been incorrect.

29. The Minister made the order of non surrender without reference to the factual

circumstances of Tsebe’s case, other than the charge, the aforementioned

14 See annexure “JTR11”: Vol 5, p 403. 15 The order appears in Vol 1, p 36. 16 See the Minister’s answering affidavit: Vol 3, para 6, p 160-161. 23

provisions of the Penal Code and formal compliance by Botswana in their

extradition request 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.17

30. 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.18

31. 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 also compromised the duty resting upon the governments of

both states to protect their citizens.19

32. Thereafter it compromised the implementation of legislative provisions within

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

Immigration Act,20 inter alia; s 29(1) and s 34(1).

32.1. The first provides that anyone against whom a warrant is outstanding

in a foreign country in respect of murder is a prohibited person and

17 Vol 3, paras 7 and 8, p 161. 18 Vol 3, para 21, p 165-166. 19 See para 9, p 162 and para 22, p 166. 20 See para 9, p 162. 24

does not qualify for a visa, admission into the Republic, a temporary or

permanent resident’s permit.21

32.2. 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.22

(Counsels’ underlining.)

33. On 22 December 2009, 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)),23 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.24

34. On 19 August 2010 Victor J interdicted the Home Affairs respondents from

returning, deporting or in any other way causing Tsebe to be returned to

21 See s 29(1) of the Immigration Act. 22 See answering affidavit of Mkuseli Apeleni: Vol 6, paras 10 and 11, p 446. 23 See Vol 2, p 103-109 at 109. 24 See too the answering affidavit of the Director-General, Vol 6, paras 35 and 36, p 452. 25

Botswana, pending the finalisation of an application to be launched before

the court a quo.25

35. 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.26

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

had attempted to arrest him for murder in Botswana.27 (The Department of

Home Affairs has furthermore been advised by the Government of Botswana

that there are at least five other fugitives from justice who have fled to South

Africa.28)

37. Botswana made an application for the extradition of Phale on 21 December

2009.29 The National Prosecuting Authority was set in motion on the following

day.30 The prosecutor, Advocate Senoge, was later informed by the DPP in

Botswana that no undertaking from the President of Botswana would be

25 See founding affidavit: Vol 1, para 73 at p 24 and the order, annexure “ET6” at p 47. 26 See Vol 6, para 81.3, p 465. 27 See Phale’s founding affidavit: Vol 7, para 24, p 590. 28 See Vol 10, the founding affidavit for leave to appeal deposed to by Modiri Matthews: para 53 at p767. 29 See annexure “JTR6” to the answering affidavit of the Minister of Justice Phale court a quo record p 324-336. 30 See answering affidavit: para 17, p 198 of the court a quo record. 26

forthcoming. Senoge then elected not to proceed with an inquiry before the

Magistrate in terms of 10(1) of the Extradition Act.31

38. At that stage the Minister of Justice had not yet been informed of the

application for the extradition of Phale. The Minister did not precipitate an

inquiry by informing the Magistrate of such a request in terms of s 5(1)(a) of

the Extradition Act.32 In the circumstances, he neither requested a diplomatic

undertaking from Botswana nor received one.33 An extradition inquiry

pursuant to the provisions of s 9 and 10 of the Extradition Act was never

held.34 However, the charge of murder against Phale had not been withdrawn

in Botswana and the state to state request for his extradition remained

extant.35

39. Because of the Minister’s decision in Tsebe, Senoge had the Phale matter

removed from the roll. Phale was released in order to prevent him from

applying for asylum (immunity from prosecution and permanent residence in

South Africa) by relying on an order of non-extradition as motivation.36 The

concern of the senior official in the South African Directorate of Public

Prosecution, Leonard SC, was that deportation might be raised as “disguised

extradition” if the procedure followed in Tsebe was repeated.

31 See Minister’s answering affidavit: paras 16.11(c) and 17 at p 198 and para 33 at p 204. 32 See answering affidavit: para 26 at p 202. 33 See answering affidavit: para 32 at p 204. 34 See answering affidavit: para 36 at p 205. 35 See answering affidavit: para 35 at p 204. 36 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. 27

40. On 20 May 2011, five days before the hearing in the court a quo, Southwood J

(in the North Gauteng High Court), 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

201137.

37 This Judgment appears at p 540 to 560 of the record in the court a quo. 28

SUMMARY OF ARGUMENT OF GOVERNMENT

41. Extradition is an act of state.

42. This is a constitutional function of the executive branch of government (“the

Government”), acting under collective Cabinet responsibility.

43. This 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.38

44. The Government must be afforded an opportunity to exercise this function,

using all the powers of the state which are available to it in their international

relations with Botswana.

45. Upon a proper construction of the judgment of this Court in Mohamed‟s case,

in surrendering a person (whether by extradition or deportation) Government

has to comply with the provisions of the Constitution as a whole; and this is

dependent upon the facts of the particular case.

46. Provisions of the Constitution impose duties and ultimate responsibility on the

Government to render all people in our country free from violence from

private sources, inter alia, in exercising governmental functions described in

38 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. 29

various provisions of the Constitution which regulate the provision of security.

The Government has a duty to allow South Africans to be free from fear and

its inhabitants to be secure.

47. 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 and immunity from

prosecution.

48. Our Constitution requires them to face justice.

49. South African court 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 them in South Africa

or incarcerating here on alternative charges on a long term basis.

50. As a matter of policy the Government would seek to return persons in their

position to Botswana to stand trial for murder there.

51. 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 Africa and foreign fugitives fleeing from justice for violent

crime allegedly committed in their countries of nationality, the balance must

favour the interests of the inhabitants of South Africa. 30

52. 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 undertaking 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.

53. 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.

54. In the circumstances the counter application should be granted in relation to

foreign nationals, and the Government should be allowed to exercise its

powers without the absolute restraint of a need for a prior undertaking that

Botswana is unable to provide under its domestic law. 31

IMMUNITY SOUGHT AND OBTAINED FROM THE COURT A QUO

55. On 27 March 2010 Tsebe launched an urgent application before the court a

quo. The material relief that he sought (for present purposes), was as

follows:-

“3. Reviewing and setting aside the decision of the First and / or

Second Respondent that the Applicant is to 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;

4. Declaring the deportation and / or extradition and / or removal

of the Applicant to the Republic of Botswana unlawful and

unconstitutional, to the extent that such deportation and / or

extradition and / or removal be carried out without the written

assurance from the Government of Botswana that the Applicant

will not face the death penalty there under any circumstances;

5. Prohibiting the Respondents from taking any action whatsoever

to cause the Applicant to be deported, extradited or removed

from South Africa to Botswana until and unless the Government

of the Republic of Botswana provides a written assurance to the 32

Respondents that the Applicant will not be subject to the death

penalty in Botswana under any circumstances;

6. Declaring the detention of the Applicant unlawful and

unconstitutional;

7. Directing the First, Second and Third Respondents to release

the Applicant from detention forthwith;

8. Directing the First and /or Second Respondents to issue the

Applicant with an appropriate permit to legalise his presence in

South Africa.”39

(Counsel’s underlining.)

56. On 22 December 2010, Phale launched an urgent application in two parts:-

56.1. In the first, prohibiting the state from taking any action whatsoever to

cause him to be deported, extradited or removed from South Africa

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 furthermore, directing the Home Affairs respondents to release

him from detention by 17h00 on the day after the order was granted;

39 See Vol 1: notice of motion, paras 3-8 at p 2 and 3. 33

56.2. In the second part;

“2. Reviewing, setting aside and declaring invalid the decision to

declare the Applicant as an illegal foreigner;

3. Declaring the detention of the Applicant unlawful and

unconstitutional;

4. Reviewing and setting aside the decision of the First and/or

Second Respondent that the Applicant is to 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;

5. Declaring the deportation and/or extradition and/or removal of

the Applicant to the Republic of Botswana unlawful and

unconstitutional, to the extent that such deportation and/or

extradition and/or removal be carried out without the written

assurance from the Government of Botswana that the Applicant

will not face the death penalty there under any circumstances;

6. Prohibiting the Respondents from taking any action whatsoever

to cause the Applicant to be deported, extradited or removed

from South Africa to Botswana until and unless the Government 34

of the Republic of Botswana provides a written assurance to the

Respondents that the Applicant will not be subject to the death

penalty in Botswana under any circumstances.”40

57. The two applications were consolidated. Tsebe passed away before the

hearing in the court a quo.

58. For purposes of these applications the court a quo accepted the contention of

the respondents that Phale was not a South African citizen, and rather a

citizen of Botswana.41

59. In effect:

59.1. Tsebe and Phale sought to interdict the Government of South Africa

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;

59.2. Phale sought the assistance of the judicial branch of government to

interdict the executive branch in advance from exercising powers of

extradition vested in the executive, despite the constitutional

separation of powers. (This is dealt with further below);

40 See Vol 7: notice of motion, p 576, more particularly paras 3 and 4 at p 577 and para 6 at p 580. 41 See judgment: para 49. 35

59.3. Both Tsebe and Phale, as foreign nationals, sought to obtain the

freedom of movement into and within South Africa, which is only

guaranteed to nationals by the general rule of international law,42 and

to South African citizens under s 21(3) of the Bill of Rights;43

59.4. Both Tsebe and Phale sought immunity from the provisions of the

Immigration Act, particularly those relating to prohibited persons, in

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

terms of s 30(1)(f).

59.5. They both sought the authority of the court a quo to:

(a) revoke the effect of the words “any illegal foreigner shall be

deported,” used in s 32(2) of the Immigration Act;

(b) provide them with immunity from prosecution under the

Botswana Penal Code, unless the Government of Botswana

agreed to violate;

(i) s 51A(6) of the Constitution of Botswana;44 or,

42 See Carmen Tiburecoo; Human Rights of Aliens under International Comparative Law; Martinus Nijhoff Publishers at p 233 to 234. 43 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. 44 This provides that in the exercise of the power to institute and undertake criminal proceedings the Director of Public Prosecution (“DPP”) shall not be subject to the direction or control of any other person or authority (supra). 36

(ii) to fetter the independence of the courts of Botswana in

violation of the Constitution of Botswana.45

60. In the circumstances which existed in South Africa, Botswana and the SADC

region at the material times,46 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”.

61. “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.”47

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

police in Botswana.48 The only offences for which he was liable to be

incarcerated in South Africa were contraventions of s 49(1)(a) and,

45 See answering affidavit of Minister of Justice: paras 58 and 59, record court a quo p 212-213. 46 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. 47 Per Chaskalson P; para 122 at p 443 H-I. 48 See founding affidavit: Vol 1, paras 25-27 at p 14-15. 37

(according to Matthews49) a contravention of s 49(14) of the Immigration Act

“in that he falsely represented that he was entitled to remain in the

Republic”.50

63. 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 in so

far as other short term incarceration is concerned will be dealt with by

Counsel for the Minister of Home Affairs).

64. 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.

65. 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. The maximum period

for which he may be detained here for any existing offence is minimal in the

circumstances.

49 See his affidavit in support of application for leave to appeal: Vol 10, para 15 at p 75. 50 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”. 38

66. However, the Government of South Africa remains constitutionally

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

in our country.” The government is bound to protect their rights. (See infra).

67. 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.

68. 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.51

69. For various reasons set out in its judgment the court a quo made the

following orders;

“1. Declaring the deportation and/or extradition and/or to the

Republic of Botswana unlawful and unconstitutional, to the

extent that such deportation and/or extradition and/or removal

be carried out without the written assurance from the

Government of Botswana that the applicant will not face the

death penalty there under any circumstance;

3. Prohibiting the respondents from taking any action whatsoever

to cause the applicant to be deported, extradited or removed

51 See founding affidavit of Minister of Justice in this application, para 40. 39

from South Africa to Botswana until and unless the Government

of the Republic of Botswana provides a written assurance to the

respondents that the applicant will not be subject to the death

penalty in Botswana under any circumstances;

4. ...

5. The counter-applications are dismissed with costs ...”52

70. The counter application that was dismissed was brought by the Government,

represented by the Minister of Justice. In its final form it read as follows:53

“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:

52 See judgment: Vol 9, para 130 at p 740-741. 53 See judgment: para 54 at p 703-704. 40

(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.”

71. For present purposes the counter application should be considered as being

directed at foreign nationals only.

72. 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. The counter

application was expressly supported by the Minister of Home Affairs.54

73. The counter application and the present application for leave to appeal also

have the support of the Cabinet. They 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. The security cluster consists of the Ministers of Defence, Correctional

54 See answering affidavit of Minister of Justice: Vol 3, para 24 at p 167. 41

Services, Social Development, Home Affairs, as well as the National

Intelligence Agency.55

74. 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.

55 See answering affidavit of Minister of Justice, founding application for leave to appeal, para 17. 42

CONTENTIONS RELIED ON BY TSEBE AND PHALE BEFORE THE COURT A

QUO

Tsebe

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

General would be unlawful and unconstitutional in that:-

75.1. It would violate the order made by the Minister of Justice that Tsebe

would not be surrendered;56

75.2. 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;

75.3. 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”);

75.4. Tsebe’s detention since 26 August 2009 had been without judicial

process and violated his rights procedurally and substantively;57

56 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. 43

75.5. The fact that there was a possibility of Tsebe facing the death penalty

in Botswana meant that his deportation or removal would be unlawful

and unconstitutional.58

75.6. 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;

75.7. 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.

75.8. 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”.

57 See founding affidavit: Vol 1, paras 17-22 at p 13-14. 58 See Vol 1, para 83 at p 27. 44

75.9. This court, in Mohamed, had emphasized certain positive duties, in

paragraphs 38, 58 and 60 of its judgment;

75.9.1. 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”;

75.9.2. Secondly, “the positive obligation that (the Constitution)

imposes on the State to protect, promote, fulfil the rights in the

Bill of Rights)”. 59

76. In so far as CAT was concerned;

76.1. South Africa had ratified this treaty on 10 December 1998;

76.2. CAT defines and prohibits torture treatment;

76.3. In Makwanyane the Constitutional Court held that the death penalty

constitutes cruel, inhuman or degrading treatment.

77. Finally, 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

59 See founding affidavit: paras 83-89 at p 27-30. 45

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

15 BHRC Part 3, 3 January 2004, 297.60

(The arguments in the last two paragraphs are answered in Section L below)

78. Similarly to Tsebe, in Part B of his application, Phale submitted that:

78.1. His deportation or removal to Botswana would constitute a disguised

extradition and would be unlawful;

78.2. 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.61

79. According to the formulation of the court a quo;

79.1. 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.”

60 Soering v United Kingdom (1989) 11 ECHR 439 Ocolan v Turkey. 61 See Vol 7, para 14 at p 588; and paras 58 and 69 at p 600-603. 46

79.2. Respondents on the other hand contended that Mohamed‟s case was

distinguishable on the facts, thus permitting extradition and/or

deportation to take place in the circumstances “of this case”.62

62 See judgment: Vol 9, para 4 at p 687. 47

GENERAL CONTENTIONS ON BEHALF OF THE GOVERNMENT (MORE

ACCURATELY STATED)

80. The Government’s contention, more accurately stated (see infra), was that

the Constitution demanded that Government should be afforded an

opportunity to perform executive functions in the manner stated 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.”

(Counsel’s underlining.)

81. This finding:- 48

81.1. Regulated the approach to the facts and law that the court a quo was

bound to follow in the Tsebe and Phale matters;

81.2. Provided that the Constitution as a whole – and not merely the Bill of

Rights – was the supreme determinant of the action demanded (of the

Republic of South Africa as one sovereign democratic state).63

81.3. Suggested that causal assurance (as opposed to an undertaking in the

terms raised in argument) was required from the Government.

82. However, 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. 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.

83. 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)

63 See the provisions of s 1(d) of the Constitution. 49

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.64

84. The court a quo also ignored the functional independence of the executive

branch of government, which the Government pertinently relied upon to

locate the relevant source of the power to extradite.

85. 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.65

86. 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.66 The court a quo

ignored this.

64 See s 30(1)(a) of the Immigration Act 65 Compare: Certification of the Constitution of the RSA, 1996 (4) SA 744 (CC), paras 109 and 113. 66 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. 50

87. In relation to the rule of law, as a founding value of the state67 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 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”.68

88. 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.

67 See Section 1(c) of the Constitution. 68 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”. 51

CERTAIN DISTINCTIONS BETWEEN CIRCUMSTANCES IN MAKWANYANE

AND MOHAMED ON THE ONE HAND AND TSEBE AND PHALE’S

CIRCUMSTANCES ON THE OTHER

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

domestic legislation (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.69 The Bill of Rights bound the South African government in this

regard. It does not bind other governments.70

90. In Makwanyane no consideration was given to justifying imposition of the

death sentence for treason committed when the Republic is in a state of war.

That question was left open. This Court expressed no views thereon.71

91. Capital punishment is not impermissible under international law.72 Such

punishment is constitutional under the law of Botswana.73 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

69 See judgment para 151. 70 See Kaunda and Others v President of the Republic of South Africa 2005 (4) SA 235 (CC), para 54. 71 See the Makwanyane judgment: para19, p 452 E-G. 72 Per Chaskalson CJ in Kaunda, para 98. 73 See S v Ntesang 1995 (4) BCLR 426 (Botswana) 52

territorial limits would, under international law, constitute an interference with

the exclusive territorial jurisdiction of Botswana.74

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

secure the removal of Mohamed from South Africa to the USA. In doing so

they had acted illegally and in breach of Mohamed‟s rights under the

Constitution. They had already violated their obligations to uphold and

promote the rights of Mohamed that were entrenched in the Bill of Rights.75

They had disregarded regulation of surrender in terms of the applicable law,

viz. the Aliens Control Act.

93. 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.76 (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).

94. Presently the Government is attempting to assert valid 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

74 See Kaunda‟s case, para 38. 75 Per Chaskalson CJ in Kaunda, para 47 and the judgment in Mohamed, para 60. 76 See Mohamed judgment, paras 1 and 70. 53

Africa;77 in circumstances where an assurance is likely to be withheld

pursuant to the constitution and laws of Botswana.

95. 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 aimed at prevention of crime and the protection

of human rights.

96. This Court stated the following in paragraph [58] of its judgment:

“For the South African government to cooperate with a foreign

government to secure the removal of a fugitive 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, is contrary

to the underlying values of our Constitution. It is inconsistent with the

government‟s obligations to protect the right to life of everyone in

South Africa, and it ignores the commitment implicit in the Constitution

that South Africa will not be party to the imposition of cruel, inhuman or

degrading punishment.” (Counsel’s underlining.)

97. Presently the Court is faced with a fugitive who has attached himself closely

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

jurisdiction.

77 See s 8(1) and s 7(2). 54

98. Both Tsebe and Phale are nationals of Botswana:-

98.1. Tsebe admitted this.78 He was born there on 4 May 1979 and his

national identity (Omang) number was 506915312.79

98.2. 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.80

98.3. 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.81

78 See founding affidavit: para 1. 79 See affidavit founding application for extradition: Vol 4, para 27 at p 251 and his national identity card at p 303. 80 See founding affidavit: para 16 at p 589. A copy of Phale’s passport appears at p 279 to 280 of the record of the court a quo as an attachment to a letter from the head of Interpol directing a superintendent Swanepoel to charge Phale and take him before the court for a first appearance and a warrant for his further detention in terms of s 7 of the Extradition Act. 81 See answering affidavit of the Minister before the court a quo: paras 16.1-16.7 at p 196 and the confirmatory affidavit of Lieutenant Colonel Molekoa: p 432-433. 55

99. In international law the two main principles by which his nationality was

acquired are descent from a national (jus sanguinis) and birth within the state

territory of Botswana (ius soli).82

100. In his answering affidavit, Phale did not dispute an allegation made by the

Minister of Justice83 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.84

101. In international law nationality falls within the domestic jurisdiction of each

state.85 No case for South African nationality was made out by Phale.86

102. One material difference of fact and circumstance between the present

matters and Mohamed‟s case arises from the fact 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. The evidence suggests that Botswana will not provide a

diplomatic assurance in the extradition application affecting Phale. 87 By

comparison, in Mohamed, no assurance was ever requested and an

assurance would probably have been provided had it been requested.

82 See Ian Brownlie: Principles of Public International Law; Seventh Edition at p 388. 83 In paras 55 and 56. 84 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. 85 See Tunis v Morocco Nationality Decrees: PCIJ Series B No. 4 (1923), 24. 86 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. 87 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. 56

103. Accordingly, this 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 undertaking referred to

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

rights of all people before making any decision.

104. Presently, the Government seeks to protect the rights of Phale as far as

possible vis a vis the government of his state of nationality. Subject to the

finding of this Court, Phale may face an extradition enquiry before a

magistrate. Should the magistrate issue an order (in terms of s 10(1) of the

Extradition Act), committing Phale to prison to await the Minister’s decision

with regard to his surrender, the Minister will engage his counterpart in

Botswana with a view to obtaining an assurance. For reasons stated above,

such an assurance is unlikely to be provided. Should this Court permit it to

exercise its functions (infra) the Government will continue (after surrender) in

its attempts to prevent his execution; that is, by political means in a SADC

forum under the umbrella of treaty cooperation that exists between the two

countries.

105. Meanwhile, any decision by the Minister to extradite Phale would remain

reviewable, in the ordinary course, on grounds other than the failure to obtain

an undertaking. 57

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

a pariah and that it violates obligations under treaty, the undertaking required

by the order of the court a quo might not - in any event - afford the necessary

protection that South Africa is required to “assure” for Phale. Under CAT, if a

sending state cannot consider diplomatic assurances to be reliable (in cases

of torture) it is not usually permitted to hand over a person.88 Nevertheless,

in this case political persuasion undertaken by the Government may prove to

be more effective against execution than a diplomatic undertaking.

88 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. 58

APPROACH TO CIRCUMSTANCES OF THIS CASE

107. When this Court in Makwanyane had to consider whether the imposition of

capital punishment was justifiable as a penalty for murder in the

circumstances contemplated in s 277(1)(a), 316A and 322(2)A of the CPA,89

a two stage approach was employed.

108. 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.90

109. This Court found 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)91 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.92The choices in this case are different.

110. 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

89 See judgment: para 96. 90 See judgment: parags 96-146. 91 Of the Criminal Procedure Act 51 of 1977. 92 See judgment: para 128. 59

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.93

111. This approach should be followed in relation to any decision that the Minister

of Justice may be called upon to make in the request for the extradition of

Phale.

112. 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.94 There was no reason to believe that had the South African

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

fact that Mohamed was facing the death penalty was a direct result of their

failure to do so.95

113. In this case the same approach to justification should be applied to cause

and effect, but in different circumstances.

93 The Court then reverted to the argument for Mohamed; namely that “a Deportation or extradition of Mohamed without first securing an assurance that he would not be sentenced to death or, if so sentenced, would not be executed” was accordingly unjustifiable. See Mohamed judgment: para 47. 94 See Mohamed judgment: para 48. 95 See Mohamed judgment: para 53. 60

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

114. 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.

115. The application of the decision in Mohamed as “an absolute bar” in the

present matter,96 in the manner contended for by Tsebe and Phale and

upheld by the court a quo, would cause those factors to be ignored. Notable

among these are;

115.1. 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”.

115.2. 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.97

96 See Minister’s answering affidavit in Phale: para 83.22. 97 See answering affidavit: paras 83.18 and 83.19. 61

116. In Carmichele v Minister of Safety and Security,98 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 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 has created an a

fortiori situation.

117. 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

98 2001 (4) SA 938 CC, paras 43-45 at 957A/B – 958C. 62

convicted in such trials – possibly for their lifetimes – are presently

beyond the means of the Government.”99

118. In answer to this allegation Phale refers to Article 5(c) of the SADC Protocol

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

terms raised in argument in Mohamed.100 The article provides that, “where

extradition is refused on this ground” (failure of the Requesting state 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.”

119. Botswana contends that it cannot give such an undertaking under its

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

action in the form of prosecution because its courts may not exercise

jurisdiction for the crime of murder committed in Botswana. Furthermore, 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.101

120. In that regard, the Minister of Justice has alleged102 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

99 See answering affidavit: para 83.21 and Phale’s reply: para 125 at 468 record court a quo. 100 See annexure “JTR13”, Vol 5, p 410. 101 See the replying affidavit of Tsebe per Snyman: paras 57.1.1 at p 522. 102 See answering affidavit: para 103.14 record court a quo. 63

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.”

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

indefinite and unnecessary charge on the State”.103

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

and combating of crime104 pursuant to SADC Protocol on Mutual Legal

Assistance in Criminal Matters, as well as a Mutual Defence Pact which has

not yet come into force.105 In terms of the provisions of the Vienna

Convention the state parties to these treaties are bound to act in good faith.

That they do so, appears from the letter of Minister Seretse, to the Minister of

Justice in which 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

103 See answering affidavit: para 83.20 at p 229. 104 Compare Kaunda‟s case para52 at 256 E-G. 105 See answering affidavit of Minister of Justice of Tsebe: Vol 3, para 77 at p 181. 64

the review of the extradition treaty and the conclusion of the pending Status

of Forces Agreement between our Cooperating Defence Forces”.106

106 See annexure “JTR12” to the answering affidavit of the Minister of Justice: Vol 5 at p 405. 65

EXTRADITION AS EXECUTIVE AUTHORITY UNDER SEPARATION OF

POWERS

123. Extradition proceedings are sui generis. The Extradition Act in essence

regulates the exercise of a sovereign state’s power.107

124. The traditional functions of a sovereign state that have been recognised by

our court are seeing to the defence of the country, conducting foreign affairs

and maintaining law and order.108

125. 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.

126. The exercise of the state’s power of extradition is delineated by the

Constitution as falling within the power of the national executive.

127. The Extradition Act ascribes the function of extradition to the Minister of

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

intended to confer a power that was not already vested in the state.109

107 Per Goldstone J in Geuking v President of the Republic of South Africa 2003 (3) SA 34 (CC), para 50 at 54A/B 108 See Inter-Science Research and Development (Pty) Ltd v Republica De Mozambique 1980 (2) SA 111 (TPD) at 122A. 66

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

ramifications.110 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, in the case of

extradition, ascribes the act to the functions of a specific member of the

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

International Relations.111

129. On the facts of the present case the exchanges between the South African

Minister of Justice and Minister Seretse traversed all three functional areas

referred to in the Inter-Science case above.

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

between states and functions at the intersection of domestic law and

international law.112 Sovereignty manifests itself internally within a state and

externally.113

131. Extradition involves three elements:

131.1. Acts of sovereignty on the part of two states;

109 Compare Bid Industrial Holdings (Pty) Ltd v Strang and Another 2008 (3) SA 355 (SCA), para 61 at 370 F/G to H/I. 110 See The Law of South Africa, 2nd Edition, Vol 10 Part 1, Extradition by NJ Botha, para 220, footnote 10. 111 See Attorney General v de Keyser‟s Royal Hotel 1920 AC 508 (HL) and Botha (2006) SAYIL infra footnote 88. 112 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. 113 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. 67

131.2. A request by one state to another state for the delivery to it of an

alleged criminal; and

131.3. The delivery of the person requested for the purposes of trial and

sentencing in the territory of the requested state.

132. Extradition 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.114

133. Extradition procedure works both on an international and a domestic plane.

The two may not be severable but they are distinct. 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 individual, there must be compliance with its own domestic law,

which each state is free to prescribe.115

114 See Geuking’s case, para 17 at p 43F/G and para 48 at p 52D-E. 115 See Harksen v President of the RSA and Others 2000 Vol 2 SA 825 (CC) para 4, p 328 E/F-G. 68

134. In exercising his powers of extradition the Minister would be unable to come

to a decision under our Constitution without first making a subjective

judgment of the legal system and internal policies of the requesting state.116

135. The Minister’s decision can be seen as falling 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.117

136. The decision to extradite therefore constitutes a policy decision in the

conduct of foreign relations.118

137. As international law does not impose a duty on states to extradite the duty

must be assumed by the state either through the conclusion of a treaty or on

the basis of international comity. The Extradition Act provides for extradition

on the basis of a treaty, or in the absence of treaty provisions.119

138. 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 either in compliance with an

116 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). 117 See Botha (2006) 31 SAYIL; South African Judicial Decisions; Functionaries and Functions in Judicial Proceedings at 312-313. 118 Robinson case supra at para 38. 119 See LAWSA supra para 227. 69

extradition agreement or after the President has in writing consented to the

surrender of that person.120

139. Foreign relations is a sphere of government reserved by our Constitution for

the national executive.121

140. 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.122

141. Domestically, the Extradition Act provides for two situations in which

extradition might take place. The first is governed by the provisions of s 3(1)

of the Act. These apply when an extraditable offence is committed within the

jurisdiction of 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 responsibility of the national executive.123 The second

situation is governed by s 3(2). This 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. Executive authority is vested in the

President, who exercises such authority collectively with the Cabinet.124

120 See Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (1) SACR 1 CC para 38. 121 See Kaunda‟s case, Chaskalson CJ at para 77 and Ngcobo J (as he then was) at para 172. 122 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. 123 See s 231(1) of the Constitution. 124 See s 83(a) and s 85(1) of the Constitution. 70

Extradition, whether by treaty or consent of the President falls within the

scope of this overall authority.

142. Extradition involves departmental coordination in concluding and

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

facilitating requests (to the Department of Foreign Relations), arrest (through

Interpol and SAPS), detention (by the Department of Correctional Services),

foreign policy decision, and national security.

143. 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 is involved in the exercise of surrendering Tsebe and Phale; as

contemplated by the following sections of the Constitution; 85(2)(b)

(developing and implementing national policy), 85(2)(c) (coordinating the

functions of state departments and administrations) and 85(2)(e) (performing

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

legislation).125

144. The requirement of obtaining the diplomatic assurance laid down in

Mohamed, at paragraph [42], falls beyond the purview of extradition (and

Immigration) legislation per 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.

125 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. 71

145. 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”).126

Ministers Allegations that the Court a quo ignored

146. 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.127

147. The Minister further alleged that the extradition exercise as a whole involves

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.128

148. The Minister also alleged that the engagement between the governments of

Botswana and South Africa was governed by international law and operated

on an international plane. It involved international politics, foreign policy

126 Contrary to the assumption of Davis J in Robinson v Minister of Justice and Constitutional Development 2006 (6) SA 214 CPD. 127 See Minister’s answering affidavit: Vol 3, para 12 at p 162-163 128 See para 13, p 163. 72

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

Botswana and the interests of justice.129

149. 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.130

150. In Phale the Minister alleged that the power of extradition could not be

exercised validly or constitutionally without reference to the policy decision of

the Government, not to be perceived as a haven for criminals that commit

capital offences in Botswana. This Court has suggested that this is a

legitimate consideration.131

129 See Vol 3, para 17 at p 164. 130 See paras 17, 19 and 20 at p 164-165. 131 See the judgment of Goldstone J in Geuking para 2 at 39I to 40A/B. 73

151. The Minister’s allegation that the extradition engagement between the

governments of Botswana and South Africa involved international politics,

foreign policy considerations, securing the well being of the people of South

Africa and Botswana as well as the interest of justice, was merely noted in

the replying affidavit.132

152. 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).

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

nature of extradition.133 This constituted a misdirection.

154. If the Minister, 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.134Nor 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.

132 Answering affidavit: para 83.11 at court a quo record p 224; and reply para 113 at p 465. 133 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). 134 Compare Soobramoney v Minister of Health Kwa-Zulu Natal 1998 (1) SA 765 (CC). 74

PROTECTION OF PHALE’S RIGHTS TO LIFE, DIGNITY AND THE PREVENTION

OF TREATMENT OR PUNISHMENT IN A CRUEL, INHUMAN OR DEGRADING

MANNER (JUSTIFICATION OF LIMITATION)

155. 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 him135 during his trial which had already commenced

when this Court heard the constitutional challenge.

156. The international case law shows that a diplomatic assurance may not

eliminate the danger aimed at by making the request,136 because such

assurances by the receiving state do not normally constitute legally binding

undertakings. The executive of a requesting state often cannot give an a

priori definitive overall assurance encompassing adjudication upon the death

penalty by its judiciary, executive clemency and pardon.

157. On the other hand (based on information and other factors within the

knowledge of a government) it may sometimes reasonably be anticipated

135 See judgment: para 53, p 915 C/D to E/F. 136 See UNHCR note on diplomatic assurances and international refugee protection (2006). 75

that a surrendered accused will not face the death penalty if convicted, even

though a diplomatic assurance cannot be given by the requesting state.137

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

not authorised to fetter the powers of the Botswana High Court.138

159. 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 of the courts of Botswana in

violation of the Constitution of Botswana. Furthermore, it was alleged that s

51A(3) of the Constitution of Botswana vests the power to institute and

undertake criminal proceedings in the DPP; and that s 51(6) thereof provides

that, in the exercise of this function the DPP “shall not be subject to the

direction of control of any other person or authority”.

160. Phale made no direct denial of these allegations other than to refer to

paragraphs 58 to 62 of Snyman’s reply in Tsebe.139 There it was alleged that

the application concerned the constitutional obligation of the respondents

within South Africa.

161. Phale also 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 by the apartheid

137 See Karas v Canada (Minister of Justice and Attorney General) 2009 BCCA 1. 138 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. 139 See Vol 7, p 527-528. 76

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).140 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.

162. It may fairly be concluded that South Africa cannot expect Botswana to meet

a demand, in the terms raised in Mohamed‟s case.

163. 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,141 both before and after surrender.

164. 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:

140 See Barcelona Traction Light and Power Company Limited [1970] ICJR 1 at 2. 141 See Kaunda‟s case: para 228. 77

164.1. to pay due regard to constitutional rights of the latter to human dignity,

life and not to be treated in a cruel, inhuman or degrading way;

164.2. 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.142

164.3. to consider the fair trial provisions in the Constitution of Botswana143

and the manner of their implementation.

165. Another material consideration is 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.144 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.145 It also requires the protection and security of the inhabitants of the

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

enforcing of law.146 It requires the executive to take responsibility should

142 See Minister’s answering affidavit: para 83.12, court a quo record p 224-225. 143 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. 144 See s 12(1)(c) of the Bill of Rights. 145 See Principles governing national security in s 198A(c) of the Constitution. 146 See s 205(3) of the Constitution relating to the objects of the police service. 78

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.147

166. Ultimately, a policy decision is required.148 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.149 Presently this alternative is beyond the means of the

Government.150

167. Another alternative (political) remedy that was pertinently raised in both

applications has been summarised in paragraph 71 of the Notice of

Application. The Government contends that:-

(a) The Republics of Botswana and South Africa are both parties to the

Treaty of the Southern African Development Community (“SADC”);

(b) 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;

147 See s 1(c) of the Constitution. 148 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). 149 See s 214(2)(c) of the Constitution. 150 See Minister’s answering affidavit, para 83.21, court a quo record p 229. 79

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”;

(d) South Africa seeks to intervene in the internal affairs of Botswana; and

compromise its sovereign right to make and enforce its own domestic

law according to its Constitution;

(e) 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;

(f) 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;

(g) 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;

(h) 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 80

institutions created by the SADC treaty in order to resolve the issue in

accordance with the objectives of the SADC”;151

(i) 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.152

168. 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.

151 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. 152 Compare para 130 and 131 Kaunda‟s case at 273 in relation to diplomatic protection. 81

PUBLIC OPINION

169. The developing and implementing of national policy in relation to any

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).

170. National security is subject to the authority of both the national executive and

Parliament.

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

relevance to the enquiry” (in that case), but that the Court had a duty to act

as an independent arbiter of what the Constitution provided for in relation to

the striking down of legislation that violated the Constitution.

172. 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 to “be

responsive” to universal adult suffrage.153

173. 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.

153 See s 1(d) of the Constitution. 82

174. Public opinion is therefore material to the draft legislation prepared by the

Chief Directorate of Justice154 or any other legislation aimed at dealing with

the mischief facing the authorities and described above.

154 See Annexure “JTR14” Vol 5, p 419-423. 83

SOURCES OF INTERNATIONAL LAW, THE CONVENTION AGAINST TORTURE

AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR

PUNISHMENT (“CAT”) AND THE OBLIGATIONS OF BOTSWANA AND SOUTH

AFRICA

175. 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, is

bound to apply four sources of international law, namely:

“(a) international conventions whether general or particular,

establishing rules expressly recognised by the contesting states;

(b) international custom, as evidence of a general practice accepted

as law;

(d) subject to the provisions of article 59, 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”.155

155 See article 38 of the Statute of the International Court of Justice 1945. Article 59 provides that the decision of the ICJ has no binding force except between the parties and in respect of that particular case. 84

176. The CAT convention 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 a declaration involving article 21 of the Convention. In terms

thereof the Committee against Torture may receive communications by a

state party against another state party. South Africa has also made a

declaration involving article 22 thereof. In terms thereof it is competent for

the Committee to receive communications from individuals. South Africa

signed CAT on 29 January 1993 and ratified it on 10 December 1998. The

Republic of Botswana ratified CAT on 8 September 2000.

177. 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.

178. 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.

The lawful sanction qualification

179. 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.) 85

180. 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”.

181. Article 3(2) provides as follows:

“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.”

182. 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.

183. The trial and punishment of Phale in Botswana would operate according to

law, namely the relevant provisions of the Botswana penal code which define

the crime of murder (s 202 and s 204) and regulate sentence upon conviction

(s 203).

184. A list of persons executed in Botswana from independence in 1966 to 2006 is

listed as part of Annexure “JTR15”.156

156 See Vol 5, p 424. 86

185. The Botswana Centre for Human Rights, a non-governmental organization

(known as DITSHWANELO”) 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. 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.”

186. Maauwe and Motswetla were retried and acquitted by the Court of Appeal in

2006.157

187. In the case of Ntesang,158 a full bench decision of five judges of the Court of

Appeal of Botswana, it was held that the death sentence was not

unconstitutional; and neither was its form of execution. The court concluded

that the prohibition against 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.

157 See Vol 3, para 108 at p 192-193. 158 1995 (4) BCLR 426 (Botswana). 87

188. 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”.

189. 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.159

190. Of the one hundred and thirty-eight state parties to CAT, forty-three permit

the death penalty.160 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.161

191. A list of the forty-three state parties to CAT that still practise the death penalty

appears on Annexure “JTR18” to the Minister’s answering affidavit.162 The

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

Lesotho, Malawi, Swaziland and Zambia (among the neighbouring states of

South Africa).

159 Per Chaskalson CJ at para 98, p 26J - 267C. 160 See answering affidavit of the Minister of Justice: Vol 3, para 143.6 at p 208. 161 Vol 5, p 429. This lists the date of signature, ratification, accession and succession. 162 Vol 5, p 433-434. 88

192. 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.

193. 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.163 This Court was required to construe the South

African Constitution as domestic law, and not as an international

instrument.164

194. Therefore a prohibition against the death penalty has not been introduced by

customary international law into the law of the Republic (in terms of s 232 of

the Constitution). Similarly, the prohibition on refouler, in article 3(1) of CAT

has not been introduced into our domestic law in relation to criminal sanction

by capital punishment. The lawful sanction qualification in article 1(1) of CAT

prevents this.

195. Finally, 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.165 Torture, which fell within the

definition of “gross violation of human rights” in terms of s 1 and Chapter 4 of

163 Per Chaskalson P judgment: para 95, p 434A/B to C/D. 164 Judgment: para 39, p 415 D-F. 165 See Azapo and Others v President of the Republic of South Africa 1996 (4) SA 671 (CC). 89

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. (Former security policeman, Geoffrey Theodore

Benzien accordingly applied for and was granted amnesty for torture by the

Amnesty Committee.)

CONCLUSION

196. The Government desires to carry out its obligations under the Constitution

and international law. It seeks the leave of this Court to exercise its powers

and assume the constitutional responsibilities which the order of the court a

quo has usurped.

197. This is a constitutional matter.

198. 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 91

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

In the matter between:

EMMANUEL TSEBE First Applicant SOCIETY FOR THE ABOLITION OF THE DEATH PENALTY Second Applicant and 92

JERRY OFENSE PITSOE (PHALE) Applicant and

CONSTITUTIONAL DEVELOPMENT Fourth Respondent THE MINISTER OF INTERNATIONAL RELATIONS AND CO-OPERATION Fifth Respondent GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Sixth Respondent

APPLICANTS’ LIST OF AUTHORITIES

Reported Cases South African Cases

1. Akani Garden Paule (Pty) Ltd v Pinnacle Point Casino (Pty) Ltd 2001 (4) SA 501 (SCA) para 3 at 507A-B/C 2. Attorney General v de Keyser‟s Royal Hotel 1920 AC 508 (HL) 3. Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 83 para 22 at 896E-897B/C: 4. Azapo and Others v President of the Republic of South Africa 1996 (4) SA 671 (CC) 5. Bato Star Fishing (Pty)Ltd. v Minister of Environmental Affairs and Tourism 2004 (4) SA 490 (CC), para 48 at p 514F-H 6. Bid Industrial Holdings (Pty) Ltd v Strand 2008 (3) SA 355 (SCA) paragraph 61 at 370 F/G to H/I 7. Carmichele v Minister of Safety and Security 2001 (4) SA 938 CC, paras 43-45 at 957A/B – 958C 8. Certification of the Constitution of the RSA, 1996 (4) SA 744 (CC), paras 109 and 113 9. Director of Public Prosecutions, Cape of Good Hope v Robinson 2005 (1) SACR 1 CC para 38 10. Geuking v President of the Republic of South Africa 2003 (3) SA 34 (CC), para 50 at 54A/B 11. Harksen v President of the RSA and Others 2000 Vol 2 SA 825 (CC) para 4, p 328 E/F-G 12. Inter-Science Research and Development (Pty) Ltd v Republica De Mozambique 1980 (2) SA 111 (TPD) at 122A 94

13. 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 14. Madzimbamuto v Lardner-Berke, N.O. & Another N.O. 1968 (2) SA 284 (RAD) at 301 15. Mohamed and Another v President of the RSA and Others 2001 (3) SA 893 16. President of the Republic of South Africa v Quagliani 2009 (2) SA 466 (CC) 17. President of the RSA v Eisenberg and Associates 2005 (1) SA 247 CPD 18. R v Christian 1924 AD 101 at 106 19. Robinson v Minister of Justice and Constitutional Development 2006 (6) SA 214 CPD 20. S v Makwanyane 1995 (3) SA 391 (CC) 21. S v Williams 1988 (4) SA 49 (W) 22. SA Association of Personal Injury Lawyers v Heath and Others 2001 (1) SA 83 para 22 at 896E-897B/C 23. Soobramoney v Minister of Health, Kwa Zulu Natal 1998 (1) SA 765 (CC) para 29 at 776 B/C to C/D

International Cases

24. 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)

25. Barcelona Traction Light and Power Company Limited [1970] ICJR 1 at 2

26. Chahal v United Kingdom (1996) 23 EHRR 413

27. Karas v Canada (Minister of Justice and Attorney General) 2009 BCCA 1.

28. Nottebohm case (second phase) International Court of Justice, ICJ Reports 1955.

29. Kindler v Canada 1992 6 CRR(2d)193.

30. Ocolan v Turkey 15 BHRC Part 3, 3 January 2004, 297

31. S v Ntesang 1995 (4) BCLR 426 (Botswana)

32. Soering v United Kingdom (1989) 11 ECHR 439 95

33. Tunis v Morocco Nationality Decrees: PCIJ Series B No. 4 (1923), 24.

Trendtex Trading Operation v Central Bank of Nigeria 1977 QB 529 (CA) at 34. 552 35. United States v Burns [2001] 1 SCR 283, 360

Statutes South African

36. Constitution of the Republic of South Africa, 1996 37. Criminal Procedure Act 51 of 1977 38. Extradition Act 67 of 1962 (“the Extradition Act”) 39. Immigration Act 13 of 2002 as amended (“the Immigration Act”) 40. Promotion of Administrative Justice Act of 2000 (“PAJA”) 41. Promotion of National Unity and Reconciliation Act, No 34 of 1995

Botswana 42. The Botswana Penal Code 43. The Constitution of Botswana

Books and articles

44. Botha (2006) 31 SAYIL; South African Judicial Decisions; Functionaries and Functions in Judicial Proceedings at 312-313 45. Carmen Tiburecoo; Human Rights of Aliens under International Comparative Law; Martinus Nijhoff Publishers at p 233 to 234 46. Ian Brownlie: Principles of Public International Law; Seventh Edition at page 388 47. The Law of South Africa, 2nd Edition, Vol 10 Part 1, Extradition by NJ Botha, para 220, footnote 10 48. The Law of South Africa, 2nd Edition, Vol 2, Part 2, paras 152-155

Treaties/International Instruments

49. African Charter on Human and Peoples Rights 96

Convention against Torture and Other Forms of Cruel and Unusual Punishment 50. (“CAT”) Convention on the Elimination of Racial Discrimination (1996) 51. Extradition Treaty concluded between the Republics of Botswana and South 52. Africa (1969) International Covenant on Civil and Political Rights 53. Legal Advice Section Division of International Protection Services Geneva, August 54. 2006 55. International Covenant on Civil and Political Rights International Convention on Suppression and Punishment of the Crime of 56. Apartheid (1973) Optional Protocol to the Convention against Torture (“OPCAT”) 57. Statute of the International Court of Justice 1945 Articles 38 and 59 58. SADC Protocol on Extradition 59. SADC Protocol on Mutual Legal Assistance in Criminal Matters 60. SADC Treaty 61. UNHCR Note on Diplomatic Assurances and International Refugee Protection 62.

United Nations General Assembly Resolution A/57/199 entered into force on 22 63. June 2006 Vienna Convention 64.