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In the Constitutional Court of South Africa

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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 2 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 5 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 6 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 7 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 8 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 A. 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.
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