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Republic of South Africa REPUBLIC OF SOUTH AFRICA SOUTH GAUTENG HIGH COURT, JOHANNESBURG CASE NO: 27682/10 DATE:22/09/2011 REPORTABLE (1) REPORTABLE: YES / NO (2) OF INTEREST TO OTHER JUDGES: YES/NO (3) REVISED. …………………….. ………………………... DATE SIGNATURE In the matter between: EMMANUEL TSEBE First Applicant SOCIETY FOR THE ABOLITION OF THE DEATH PENALTY IN SOUTH AFRICA 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 MS ANN MOHUBE, ACTING DEPUTY DIRECTOR, LINDELA HOLDING FACILITY Fourth Respondent MR JOSEPH SWARTLAND, ASSISTANT DIRECTOR, LINDELA HOLDING FACILITY Fifth Respondent 2 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 COOPERATION Eighth Respondent GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Ninth Respondent AND CASE NO: 51010/10 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 Fourth Respondent THE MINISTER OF INTERNATIONAL RELATIONS AND COOPERATION Fifth Respondent GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA Sixth Respondent _______________________________________________________________ J U D G M E N T _______________________________________________________________ THE COURT: 3 INTRODUCTION [1] We have before us two applications, each having a counter-application. The first application is in Case No. 27682/10 and the second in Case No. 51010/10. We will refer to the first application as the “Tsebe” case and the second as the “Phale” case. [2] The Tsebe and Phale applications have been consolidated as the claims and counter-applications in both matters are substantially identical. [3] Both applications concern the obligations of the South African State under the Constitution, Act 108 of 1996, read with international law, regarding the extradition or deportation of a foreign national who is also a fugitive of justice to a State where he or she is at risk of being subjected to the death penalty. The applicants contend that under the Constitution no removal of any sort may occur in such circumstances whereas the respondents contend the contrary. The matter, therefore, concerns the relationship between two African states, The Republic of South Africa (“the RSA”) as the requested state and the Republic of Botswana (“Botswana”) as the requesting state. It will require an interpretation of the extradition treaty in existence between the two states as well as their respective constitutions and domestic laws coupled with an appropriate application of international law. [4] The applicants contend that the Constitutional Court in Mohamed and Another v President of the RSA and Others 2001 (3) SA 893 (CC) (“Mohamed”) has 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. The respondents on the other hand contend that Mohamed is distinguishable on the facts thus permitting extradition and/or deportation to take place in the circumstances of this case. 4 THE PARTIES [5] In the Tsebe case there are two applicants. Emmanuel Tsebe is the “first applicant” and the Society for the Abolition of the Death Penalty in South Africa is the “second applicant”. The second applicant was granted leave to intervene by order of court.1 [6] The Minister of Home Affairs is the first respondent and the Director- General: Department of Home Affairs is the second respondent in both the Tsebe and Phale cases. In the Tsebe case, Bosasa (Pty) Ltd t/a Leading Prospects Trading, the Minister of Justice, the Minister of International Relations and Cooperation and the Government of the Republic of South Africa are respectively the sixth, seventh, eighth and ninth respondents whereas in the Phale case they are respectively the third, fourth, fifth and sixth respondents. Bosasa (Pty) Ltd and the Minister of International Relations and Cooperation have elected to abide the decision of the court in both instances.2 [7] In the Tsebe case Mr George Masanabo, the Acting Director of Deportations, Ms Ann Mohube, the Acting Deputy Director of the Lindela Holding Facility and Mr Joseph Swartland, the Assistant Director of the Lindela Holding Facility were cited as the third, fourth and fifth respondent respectively. [8] All the respondents save those mentioned in paragraph [6], gave notice of intention to oppose the applications. 1 See the order of Claassen J dated 9 February 2011 pages 45/6 of the second applicant’s application to intervene under Case No. 27682/2010, commencing after page 726 in the record. The Index in Volume 2 of the Tsebe case refers to this application as item 25. 2 In the Tsebe case, see record pages 60, 61 and 61i; In the Phale case see page 189iii in respect of the 5th respondent. The 3rd respondent filed no opposition to the Phale application. 5 [9] Mr. Katz SC with Messrs Du Plessis and Lewis, all from the Cape Bar, appeared for Messrs Tsebe and Phale. Mr S Budlender with Mr Brickhill, both from the Johannesburg Bar, appeared for the Society for the Abolition of the Death Penalty. Mr Schippers SC with Ms Mayosi, both from the Cape Bar, appeared for the Minister of Home Affairs and the Minister of International Relations and Cooperation. Mr Donen with Ms Poswa-Lerotholi, also from the Cape Bar appeared for the Minister of Justice and Constitutional Development and the Government of South Africa. [10] During argument, counsel for all the parties agreed that nothing turns on the application to condone the late filing of documents instituted by the first and second respondents.3 The court can, therefore, accept that all documents are properly before it. [11] The facts giving rise to the present application are either common cause or not seriously in dispute. The documents and annexures attached to the affidavits speak for themselves and sometimes louder than the deponents! Thus, no credibility issues arise. This is so due to the fact that the real disputes between the parties are legal in nature concerning the proper interpretation of various statutory instruments and the applicable case law. CHRONOLOGY OF FACTS IN THE TSEBE APPLICATION [12] Mr Tsebe was a Botswana citizen. He died on 28 November 2010, prior to the hearing of this application.4 3 See the Phale application, record page 481. 4 See Annexure “GS1”, the Death Report from Correctional Services, Krugersdorp, record page 614. 6 [13] In view of the fundamental public importance of the issues at stake, all parties and their representatives agreed that the application raised live issues, which should be heard and determined. This court has a discretion to hear questions of law which are likely to arise again as the questions in this case surely would. The applications raise important constitutional issues affecting inter state relations in regard to extradition of fugitives of justice and cannot, therefore, be regarded as moot.5 In any event, the counter-applications are live issues, which have to be determined, including the costs occasioned by the applications and counter-applications. 2008 [14] Mr Tsebe was charged with having brutally murdered his common-law wife on 21 July 2008 by assaulting her with a machete and a stick in Botswana in contravention of section 202 of the Botswana Penal Code. The pathologist, who conducted the post mortem examination, concluded that she died of chop wounds to her head. The gruesome photographs in the papers, amply confirm this conclusion.6 The Botswana Public Prosecutor issued a warrant for his arrest, on 30 July 2008.7 [15] In Botswana the death penalty may be imposed if an accused is convicted of murder without extenuating circumstances.8 5 See paragraph 3 of Gina Snyman’s replying affidavit, record page 546; the second applicant’s founding affidavit in its intervention application at paragraph 11, record page 13. See also Land en Landbouontwikkelingsbank van Suid-Afrika v Conradie 2005 (4) SA 506 (SCA) at paragraphs [5] to [7]; MEC for Education, KwaZulu-Natal, and Others v Pillay 2008 (1) SA 474 (CC) at paragraph [32]. 66 See record pages 312 to 326. 7 See Annexure “JTR1”, record page 230. 8 Sections 202 and 203 Division IV, “OFFENCES AGAINST THE PERSON”, Botswana Penal Code Chapter 08:01 state the following: “202. Any person who of malice aforethought causes the death of another person by an unlawful act or omission is guilty of murder. 203. (1) Subject to the provisions of subsection (2), any person convicted of murder shall be sentenced to death. 7 [16] When the Botswana Police attempted to arrest Mr Tsebe he fled to South Africa. As such he is a fugitive of justice. [17] He was arrested on 30 July 2008 by the South African Police on a farm in the Mokopane district, Limpopo. His first appearance in court occurred on 31 July 2008.9 He remained in custody in Mokopane for more than a year until 26 August 2009. [18] In a written “Apostile” dated 19 August 2008 issued under the Convention De La Haye of 5 October 1961, the Principal Prosecuting Counsel, Mr Merapelo Mokgosi acting under delegated authority from the Botswana Director of Public Prosecutions, Ms L.I. Dambe, formally applied via the appropriate diplomatic channels, for the extradition of Mr Tsebe to Botswana.10 On 28 August 2008 the Department of Foreign Affairs forwarded this extradition application to the Director-General of the Department of Justice and Constitutional Development. 11 [19] Thereafter on 11 November 2008 Mr M E Surty, the then Minister of Justice, responded to the request in the following terms: “Kindly be advised that I have carefully considered the request for the extradition of Mr Tsebe from the Republic of South Africa to the Republic of Botswana in order to stand trial on a charge of murder.
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