Tsebe and Another v Minister of Home Affairs and Others, Phale v Minister of Home Affairs and Others (27682/10, 51010/10) [2011] ZAGPJHC 115; 2012 (1) BCLR 77 (GSJ); [2012] 1 All SA 83 (GSJ) (22 September 2011)

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[2011] ZAGPJHC 115
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Tsebe and Another v Minister of Home Affairs and Others, Phale v Minister of Home Affairs and Others (27682/10, 51010/10) [2011] ZAGPJHC 115; 2012 (1) BCLR 77 (GSJ); [2012] 1 All SA 83 (GSJ) (22 September 2011)

REPORTABLE
SOUTH
GAUTENG HIGH COURT, JOHANNESBURG
CASE
NO: 27682/10
DATE:22/09/2011
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
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
:
INTRODUCTION
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.
The
Tsebe and Phale applications have been consolidated as the claims
and counter-applications in both matters are substantially

identical.
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.
The
applicants contend that the Constitutional Court in
Mohamed
and Another v President of the RSA and Others
[2001] ZACC 18
;
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.
THE
PARTIES
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
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
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.
All
the respondents save those mentioned in paragraph [6], gave notice
of intention to oppose the applications.
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.
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.
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
Mr
Tsebe was a Botswana citizen. He died on 28 November 2010, prior to
the hearing of this application.
4
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
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
In
Botswana the death penalty may be imposed if an accused is convicted
of murder without extenuating circumstances.
8
When
the Botswana Police attempted to arrest Mr Tsebe he fled to South
Africa. As such he is a fugitive of justice.
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.
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
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.
Taking into consideration that the death penalty is
the prescribed
sentence upon a conviction on a charge of murder, and that no
undertaking was attached to the request by the Directorate
of Public
Prosecutions, which undertaking should state that the Prosecution
will not seek the death penalty and, if it is imposed,
it will not be
executed
,
I cannot order the surrender of Mr Tsebe to Botswana if found
extraditable
12
.
Although
the request is yet to be placed before the magistrate who is to do an
enquiry, it is advisable to have an undertaking before
the magistrate
makes a finding as to whether Mr Tsebe is extraditable, or not. This
will assist us to process the extradition
timeously if the magistrate
were to find Mr Tsebe extraditable.
It
would be appreciated if the honourable minister can facilitate the
making of the said undertaking.”
13
[Emphasis added]
Ultimately
on 11 December 2008 an extradition enquiry commenced before
magistrate Ms A. Swanepoel in the Mokopane Magistrates’

Court.
14
2009
After
a number of postponements of the enquiry, the magistrate found on 11
March 2009 that Mr Tsebe is liable to be surrendered
to the Republic
of Botswana.
15
In
response to the letter by Mr Surty dated 11 November 2008, the
Minister for Defence, Justice and Security of Botswana, Mr
D.N.Seretse, replied in a letter dated 20 May 2009 as follows:
“
The
Department of Justice of the Republic of South Africa has 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 such provision
in our laws or the treaty between the two countries to that
effect.”
[Emphasis added]
The
letter also requested a meeting to discuss this matter further with
the current Minister of Justice, Mr Radebe.
16
It may be noticed, at this early stage already, that an executive
“decision” seems to have influenced the independence
of
the prosecution in Botswana as to whether or not it should ask for a
death sentence to be imposed in the event of
Tsebe’s
conviction. We will return to this aspect at a later stage in this
judgment.
Recognising
the conundrum caused by this stalemate between South Africa and
Botswana, the following observations were recorded
in an inter
departmental memorandum addressed to the seventh respondent dated 9
June 2009 regarding Mr Tsebe
17
:
“
13.14
On a number of occasions officials in the Ministry for Defence,
Justice and Security of Botswana have expressed the view
that the
undertaking undermines the legal system of Botswana.
On
the other hand, if South Africa does not request an undertaking, the
South African legal system will also be undermined.
In practice this issue, which is often encountered with other
countries still to abolish the death penalty, is always addressed
by
the Department by requesting an undertaking from the requesting
State.
Requesting
States generally provide undertakings. This is the practice across
the globe since a compromise is the only way to deal
with the issue.
Perhaps a permanent solution would be to amend the Treaty to provide
for such an undertaking.”
[Emphasis added]
A
meeting was arranged for 14 July 2009 at the offices of the seventh
respondent in Pretoria. Confirmation of what was discussed
between
the parties appears in a letter written by the seventh respondent
dated 4 August 2009 to Mr D.N. Seretse. In this letter
the seventh
respondent records the following:
“
You
will recall that after discussing possible ways of assisting your
Government regarding the above request, it was agreed that
the
Government of South Africa will not be in a position to extradite Mr
Emmanuel Tsebe to your country to stand trial on the charge
of murder
because your Government cannot make the required undertaking to the
Government of South Africa that your Prosecution
will not seek the
death penalty upon conviction of Mr Tsebe, and if it is imposed by
the court, it will not be executed
.
Furthermore, it was agreed that the Government of South Africa
should prosecute Mr Tsebe before its own courts. It was further

agreed that the Extradition Treaty between the Government of South
Africa and the Government of the Republic of Botswana be reviewed
in
line with modern trends.
At
the present moment, the Government of South Africa does not have a
legal mechanism to prosecute Mr Tsebe. We are considering
the
development of new legislation or amendment of existing legislation
to give our courts extra-territorial jurisdiction over
foreign
nationals who cannot be surrendered to requesting States for reasons
similar to that of the case pertaining to Mr Tsebe.
However, the said
legislation will apply to future requests.
Therefore,
Mr Tsebe will be released by the Court since he cannot be surrendered
to your country for the abovementioned reasons.
The Department of Justice and Constitutional Development and Home
Affairs of the Government of South Africa will discuss as how
best to
resolve Mr Tsebe’s stay in our country, or deportation to your
country since he will be regarded an illegal immigrant
upon his
release
.
This is a complex matter given our Constitutional Court judgment on
deportation of persons sought for criminal prosecution to
countries
where they can be sentenced to death
.”
18
[Emphasis added]
The
aforesaid view adopted by the seventh respondent is congruent with
Article 6 of the extradition treaty in existence between
South
Africa and Botswana, which provides that:
“
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.”
19
The
Department of Justice and Constitutional Development commenced with
the preparation of draft legislation conferring upon courts
in South
Africa jurisdiction in respect of offences committed outside the
Republic for which extradition was requested in circumstances
where
the requesting State does not provide assurances that the death
penalty will not be imposed or if imposed will not be carried
out.
20
These recommendations were accepted by the seventh respondent on 6
August 2009. The contemplated draft legislation was designed
to give
effect to Article 5(c) of the Southern African Development Community
(“SADC”) protocol on extradition.
21
This subsection states the following:
“
Extradition
may be refused in any of the following circumstances:
…
…
if
the offence for which extradition is requested carries a death
penalty under the law of the Requesting State, unless that State

gives such assurance, as the Requested State considers sufficient
that the death penalty will not be imposed or, if imposed,
will not
be carried out. Where extradition is refused on this ground, the
Requested State shall, if the other State so requests
,
submit the case to its competent authorities with a view to taking
appropriate action against the person for the offence for
which
extradition had been requested
;…
” [Emphasis added]
However,
nothing concrete materialized in respect of such contemplated
legislation. Presumably the reason for the termination of
any further
action in this regard is financial by nature.
22
In this regard it should be noted that territoriality of criminal law
is not an absolute principle of international law. States
do have a
wide measure of discretion to extend the application of their laws
and the jurisdiction of their courts to persons, property,
and acts
outside their territory.
23
In
a letter dated 12 August 2009 Mr Seretse agreed to continue to
engage with the South African Government “on the review
of the
extradition treaty…”
24
On
25 August 2009 the current Minister of Justice Mr J T Radebe issued
an order repeating that Mr Tsebe is
not
to
be surrendered to Botswana.
25
The next day, 26 August 2009, Mr Tsebe appeared in the Mokopane
Magistrates’ Court for the last time. On that date he
was
transferred to Lindela Holding Facility. At the Lindela Holding
Facility, he was told by immigration officers that he was
to be
deported to Botswana.
26
On
26 August 2009 a notification for the deportation of Mr Tsebe to
Botswana as an “illegal foreigner” was issued
by an
immigration officer in the employ of the Department of Home
Affairs.
27
This notification indicated that Mr Tsebe elected to appeal the
deportation decision. On the same day a warrant for the detention
of
Mr Tsebe at Lindela Holding Facility was issued.
28
This detention was extended by court on 29 September 2009 for
another 90 days.
29
On
22 December 2009 Dr N.C. Dlamini Zuma, the then Minister of Home
Affairs, agreed to have Mr Tsebe deported.
30
For some unknown reason these threats and orders to deport were not
immediately carried out although similar threats were repeated
later
on.
2010
While
still in detention at Lindela Holding Facility, Mr Tsebe obtained
legal assistance from Ms Gina Snyman of Lawyers for Human
Rights. On
14 May 2010 she addressed a letter to The Minister of Justice,
Minister of Home Affairs, Director-General of Home
Affairs,
Director: Legal Services of Home Affairs and the Assistant
Director: Lindela Holding Facility. The letter confirmed
that Mr
Tsebe had been detained for approximately 1
½
years awaiting trial or possible extradition. She referred to the
order issued by the Minister of Justice that he was not to
be
surrendered to Botswana. The letter continued:
“
Mr
Tsebe has been detained at the Lindela Holding Facility in
Krugersdorp since 26 August 2009, apparently without judicial
process.
Lindela
is a holding facility for purposes of deportation, and is not
authorised to detain for any other purpose, or to detain
indefinitely. Moreover, because Mr Tsebe is not being detained for
the purpose of deportation, he does not fall under
section 34
of the
Immigration Act 13 of 2002
. In any case the Act only allows for
detentions up to 120 days, and he has now been detained in excess of
this legislated maximum
period. Mr Tsebe is being detained at
Lindela indefinitely and without any legal basis.
We
recognise that he has been accused of a serious crime, and upon
conviction could be sentenced to imprisonment. However, without

judicial process Mr Tsebe’s continued detention at Lindela is
indefinite, arbitrary and occurring outside the law. He further
has
a constitutional right to be informed of the reason for his
detention, and to defend any charges brought against him.
Kindly
now advise us of what steps are being taken to ensure that Mr Tsebe
is afforded his constitutional rights to due process,
and judicial
review of his detention to ensure that it is not continued outside of
the law, arbitrarily and indefinitely.”
31
On
8 June 2010 Ms Berdine Schutte replied on behalf of the Minister of
Justice. This letter stated the following:
“
Our
office forwarded a letter to the Department of Home Affairs
indicating the position and advising them that Mr Tsebe not be
deported. I’ve also spoken to officials of the Department of
Home Affairs on several occasions.
The
matter is out of our hands. It is now for the Minister of the
Department of Home Affairs to make a decision as to what is to
happen
with Mr Tsebe.”
32
It
would seem as if the seventh respondent at this stage attempted to
wash its hands from this issue and shift the responsibility

elsewhere.
In
a letter dated 6 August 2010, the Director-General of Home Affairs
informed the Director-General of the Department of Justice
and
Constitutional Development that Mr Tsebe would be deported. The
letter states the following:
“
The
Minister of Justice and Constitutional Development took a decision
not to extradite Mr Tsebe as a result of the Botswana Government

refusing to give an assurance that the death penalty would not be
imposed should he be found guilty.
The
Minister of Home Affairs, after lengthy consultations with Home
Affairs officials, has decided that Mr Tsebe should be deported
to
Botswana within the next few days as he remains a fugitive from
justice and would not be eligible for status within the Republic
of
South Africa.
We
have therefore been instructed to carry out this instruction and to
inform your Department.”
33
In
response to the letter of Ms Schutte dated 8 June, Ms Snyman once
again wrote to all the respondents on 18 August 2010 wherein
she
recorded that Mr Tsebe was informed on 17 August 2010 in violation
of the order from the Minister of Justice not to be surrendered
to
Botswana, “that he will be deported within 3 days”. She
referred the respondents to the decision in
Mohamed
where
after she stated as follows:
“
In
the circumstances we demand that all deportation proceedings against
Mr Tsebe be immediately halted. We further record that we
are in the
process of the (sic) launching an urgent court application for the
same…”
34
It
is obvious that these threats of immediate deportation prompted
Tsebe’s legal representatives into action. On 19 August
2010
Victor J granted in this court an interim order wherein the first
and second respondents were interdicted from deporting
or in any
other way causing the applicant to be returned to Botswana, pending
the finalisation of an application to be launched
by the applicant
by no later than 27 August 2010.
35
The
Tsebe
application was indeed launched on 27 August 2010.
36
THE
RELIEF SOUGHT IN THE
TSEBE
APPLICATION
During
argument the relief sought by counsel for the first and second
applicants was refined by abandoning certain of the prayers
in the
original notice of motion. Thus the relief currently sought is the
following:
“
1.
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 circumstance;
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 respondents
that the applicant
will not be subject to the death penalty in Botswana under any
circumstances;
3.
Directing the first and second respondent and any other party who
opposes the relief sought herein to pay the applicants’
costs
inclusive of the cost of two counsel.”
THE
PHALE
APPLICATION
The
relief sought in this application is similar to that sought in the
Tsebe
application. The only difference is that it relates to a different
person, being Mr Phale.
CHRONOLOGY
OF THE FACTS
Mr
Phale was born in Mochudi, Botswana on 15 August 1970. His mother,
Elsie Phale, married his stepfather Ramontsho Phale
whose
surname was given to him at his birth. His mother never married his
biological father Johannes Baloyi. His biological father
was a
Tsonga and was born in South Africa. Baloyi fled to Botswana as an
adult during the Apartheid years where he worked as
a teacher.
During
or about 1988 when he was approximately 18 years old, Mr Phale came
to what was then known as “Bophuthatswana”
in the RSA
and took up residence with his mother’s cousin Lizzie Pitsoe,
who informally adopted him. Since then and while
in South Africa he
only used the surname Pitsoe and not Phale. He alleges to have many
relatives in South Africa on his father’s
side and that he
always had close ties with South Africa. In 1988 with the assistance
of his aunt Lizzie he was issued with an
identity document under the
former homeland government of Bophuthatswana.
Mr
Phale alleges that sometime between 1992 and 1994 when he was
working on the mines in Rustenburg, he “traded in”
his
“homeland” identity document and was issued with a South
African identity book. He voted as a South African in
the 1994
elections and subsequent elections. His South African identity book
is currently in the possession of the police.
During
1996 he returned to Botswana after his brother was murdered. His
mother asked him to return permanently to Botswana for
safety
reasons. He did not comply with this request and instead travelled
between Botswana and South Africa on a regular basis.
During
October 2009 he was accused of committing a murder in Botswana in
contravention of section 202 of the Botswana Penal Code.
It was
alleged that he murdered his former lover. On 1 October her
decomposed body was found in Marula lands, about 35 kilometres
from
Francistown. Inside her car was found her clothing and a passport in
the name of Mr Phale. Fearing that he would not receive
a fair trial
and not being able to afford an attorney, he fled to South Africa
when the Botswana police attempted to arrest him.
On
8 November 2009 he was arrested while at a church service in Moria,
Tzaneen, by some of his co-church members who handed him
over to the
South African Police in Mankweng, Limpopo. He was arrested without a
warrant in terms of
section 40(1)(k)
of the
Criminal Procedure Act
51 of 1977
. On 10 November he appeared in the Mankweng Magistrates’
Court. He appeared in that court four times. On 2 March 2010 he
was
informed that the criminal case against him is withdrawn.
37
Despite such withdrawal he remained in custody. On 15 April 2010 he
was transferred to Lindela Holding Facility where he has
been held
in custody ever since.
Unbeknown
to the applicant a request was issued by Interpol for his arrest
under the name of “Mr Phale”.
38
Interpol indicated that he was to be informed that he was arrested
under article 15 of the extradition agreement in existence
between
Botswana and South Africa. This request was issued on 10 November
2009 and addressed to the Station Commander of the
Mankweng Police
Station. Interpol requested his “provisional arrest”.
Attached to the documents was a copy of his
passport indicating that
he was a Botswana citizen.
39
At
the request of the Directorate of Public Prosecutions in Botswana an
application for his provisional arrest dated 10 November
2009 was
attached to the Interpol documents.
40
At the hearing on 10 November 2009 Mr Phale was duly represented by
a Mr Ramala. The lawfulness of his arrest was not put in
issue and
it was admitted that he was an illegal immigrant. For that reason
there was no application for his release or for the
granting of
bail. He was remanded in custody until 20 November 2009 in
anticipation of an extradition process.
On
10 December 2009 in terms of a diplomatic Apostille a formal request
by Ms Dambe, the Director of Public Prosecutions in Botswana
was
made for the extradition of Mr Phale.
41
The Department of International Relations and Cooperation forwarded
this application to the Director-General of the Department
of
Justice and Constitutional Development under cover of a letter dated
22 December 2009.
42
Mr
Phale appeared again in the Magistrates’ Court on 28 December
2009. He was represented by Mr Segooa. The Apostille containing
the
former request for his extradition was handed in to court as an
exhibit and to the defence. Mr Phale’s case was further

remanded to 2 February 2010.
In
a letter dated 26 February 2010 addressed to the National
Prosecuting Authority of South Africa, the Deputy Director of Public

Prosecutions in Botswana intimated that
no
assurance
that the death penalty will
not
be imposed by the President of Botswana, would be forthcoming.
43
The Minister of Justice alleges that he never requested such an
undertaking in regard to the extradition of Mr Phale.
44
In the light of the aforesaid letter it was decided not to call an
enquiry in terms of section 10(1) of the Extradition Act.
And hence,
when Mr Phale appeared in court again on 2 March 2010, the charge
was withdrawn. The applicant was then discharged
but not released
from detention.
The
state of affairs in the
Phale
matter therefore took a similar turn to that in the
Tsebe
matter
except for the fact that the citizenship of Mr Phale is in dispute.
For purposes of this application the contention of
the respondents
will be accepted that Mr Phale is not a South African citizen but
indeed a citizen of Botswana.
On
22 July 2010 Mr Phale consulted with Ms Snyman of the Lawyers for
Human Rights. Ms Snyman then addressed a similar letter to
all the
respondents as she had done in respect of Mr Tsebe, complaining of
his indefinite and unlawful detention.
45
On
6 August 2010 Mr J N Labuschagne on behalf of the Ministry of
Justice and Constitutional Development responded to the letter

written by Ms Snyman. The letter contains the following:
“
If
we understand your letter correctly, it seems to us that the criminal
case against Mr Pitsoe in the Polokwane Court has been
withdrawn. As
such, there does not seem to be any court action pending against Mr
Pitsoe in South Africa. On the same basis, we
cannot find any
indication that the Botswana Government has approached us for the
extradition of Mr
Pitsoe.
46
As a matter of fact, the indications contained in your letter seem
to be that the Department of Home Affairs would want to deport
him to
Botswana. Deportation, as you are aware, is a matter that is vested
in the Department of Home Affairs. Accordingly, I assume
that the
Minister of the Department of Home Affairs will take care of your
representations and report back to you.”
47
The
applicant alleges that no further responses from the Department of
Home Affairs were received by Ms Snyman. However, the charges
of
murder instituted against the applicant in Botswana are still
pending.
Mr
Phale alleges that the attempt to deport him to Botswana is in fact
a disguised extradition and therefore unlawful. Whether
is so or not
is in dispute but it is not necessary for the purpose of this
application to resolve such dispute.
THE
COUNTER-APPLICATIONS
Counsel
for the Minister of Justice, during argument, refined the relief
sought in the counter-applications. The same relief is
sought in the
Tsebe
and
Phale
counter-applications. The refined form of relief is contained in a
draft order handed in by Mr Donen and reads as follows:
“
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 section 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 section 10
of the said Act, to be surrendered to any person
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:
(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
the
foreign State has refused to provide such an assurance by virtue of
provisions contained in its domestic law.”
In
support of the aforesaid relief the Minister of Justice makes the
following points:
Because
the imposition of a death penalty remains a function of the
judiciary in Botswana, any request by the Republic of South
Africa
for a death penalty assurance, involves foreign interference in the
judicial process of the courts in Botswana and thus
fetters the
independence of such courts.
The
Constitution of Botswana renders the Director of Public
Prosecutions independent of control from any other person or

authority and thus any assurance by the Executive of Botswana in
relation to the death penalty will compromise the independence
of
the prosecution in Botswana.
The
purpose of the declaratory relief sought is to permit the Executive
of the Government of South Africa to exercise other
foreign policy
options over persons who find themselves in the position of Mr
Phale and Mr Tsebe.
It
is further contended that the features of the present cases are
distinguishable from the facts in the
Mohamed
case. The following features are relied upon in paragraph 83
48
of the answering affidavit in the following terms:
“
83.1
The provisions of the Extradition Act stand to be applied in good
faith in this matter and with reference to both the facts
and the
Constitution;
No
provision of the Extradition Act or the Extradition Treaty,
expressly prohibits the extradition of a fugitive for trial in
a
foreign State where a capital offence has been committed;
The
present applicant is (as Mr Tsebe was) a national of Botswana who
fled from justice in relation to a murder charge alleged
to have
been committed on a fellow-citizen of Botswana in Botswana;
The
Government of Botswana wishes the alleged perpetrator to stand
trial before its courts (that is in the territory where one
of its
citizens was unlawfully killed);
It
is the sovereign right of Botswana to make the laws applicable for
the conduct of such a trial, and to execute the laws in
question;
Capital
punishment is not impermissible under international law;
The
Bill of Rights in the Constitution of South Africa has no direct
extraterritorial effect and cannot interfere with the sovereign

authority of Botswana;
The
Bill of Rights binds the South African Government, even when it
acts outside South Africa (subject to the consideration
that such
application does not constitute an infringement of the sovereignty
of Botswana);
South
Africa has an obligation to cooperate with Botswana in the
prevention and combating of crime, and Botswana is likely to
offer
to reciprocate in respect of persons similarly wanted by the
Republic of South Africa;
The
Government of the Republic of South Africa (as a matter of policy)
does not wish its country to be perceived as a haven
for criminals
committing capital offences in Botswana;
Because
engagement between the Governments of Botswana and South Africa is
governed by international law and operates on an
international
plain, it involves international politics, foreign policy
considerations, securing the well-being of the people
of South
Africa and Botswana (primary functions of the Executive), as well
as the interests of justice;
At
all times before and after the surrender of the applicant, the
executive will remain bound to act consistently with the
obligations imposed upon it by the Bill of Rights. In exercising
the permissive powers vested in me by section 11 of the Extradition

Act and before reaching a decision whether or not to order the
surrender of the applicant:
83.12.1
I will be required to pay due regard to the applicants’
constitutional rights to human dignity, life and not to be
treated or
punished in a cruel, inhuman or degrading way;
I
will also be required to consider the other material facts and
circumstances referred to in his founding affidavit and the

prohibition against the death sentence arising from the decision
in S v Makwanyane and Another.”
A
further “alternative remedy” to resolve the
impasse
suggested by the Minister of Justice was to involve the SADC Treaty
by requesting its functionaries to resolve the issues.
49
Counsel for the Minister of Justice however abandoned this argument.
The
Minister of Justice also relies upon the argument that the judicial
process and the post-conviction processes for clemency
or
commutation of sentence by the President of Botswana are within the
normal bounds of an open and democratic society. It is
suggested
that, if extradited, Mr Phale will be afforded all the normal human
rights protection during his criminal trial in
Botswana.
Finally
the Minister of Justice relies, rather vaguely, on the lack of
funding and resources to accommodate any judicial process
within the
borders of South Africa in the event of Parliament passing
legislation establishing extraterritorial jurisdiction
in cases
where crimes were committed by accused outside the borders of South
Africa.
50
In
order to deal with the various contentions advanced by the parties
to the present litigation, it would be necessary to refer
to
relevant statutory and other instruments of law, which may have a
bearing upon the ultimate decision in this case.
BOTSWANA
AND THE DEATH PENALTY
It
should be noted that since its independence granted during 1966,
Botswana has not presented with a good track record with regard
to
implementing death penalties. During the period between 12 November
1966 and 24 January 1998 no less than 32 persons were
executed by
hanging. During the period between 31 March 2001 and 1 April 2006
another six individuals were executed by death
penalties.
51
Particularly
regrettable was the case of
Mariette
Bosch,
a
South African woman, who was convicted of murder in Botswana and
sentenced to death. After her various appeals and a request
for
clemency addressed to the President were rejected, she made an
application to the African Commission alleging a violation
of
various rights under the African Charter. On 27 March 2001 the
Chairman of the African Commission wrote to the President
of
Botswana appealing for a stay of execution pending the final
determination of her petition. Despite such request and on 31
March
2001, Botswana secretly executed her.
52
Despite the fact that the African Commission held Botswana not to
have been in violation of the African Charter in doing so,
it did
conclude its report, in paragraph 52 thereof
53
,
in the following manner:
“
52.
However, it would be remiss for the African Commission to deliver
its decision on this matter without acknowledging
the
evolution of international law and the trend towards abolition of the
death penalty
.
This is illustrated by the UN General Assembly’s adoption of
the 2nd Optional Protocol to the ICCPR and the general reluctance
by
those States that have retained capital punishment on their Statute
books to exercise it in practice. The African Commission
has also
encouraged this trend by adopting a ‘Resolution Urging States
to Envisage a Moratorium on the Death Penalty’
and therefore
encourages all states party to the African Charter to take all
measures to refrain from exercising the death penalty.”

(Emphasis added)
In
the case of
Kenneth
Good v Republic of Botswana
54
the African Commission found that Botswana had violated articles 1,
2, 7.1(a), 9, 12.4, 18.1 and 18.2 of the African Charter.
It
further held that Botswana should take steps to ensure that sections
7(f), 11(6) and 36 of its
Immigration Act conform
to international
human rights standards and in particular the African Charter.
Furthermore, it ordered Botswana to provide adequate
compensation
for the losses Professor K. Good suffered as a result of these
violations including remuneration and benefits he
lost as a result
of his unlawful expulsion and the legal cost he incurred during
litigation in the domestic courts and before
the African
Commission.
55
Despite the fact that Botswana is a signatory to the African Charter
it indicated that it was
not
intending
to implement the judgment. The Botswana Law Society referred to this
intention as “regrettable”. In so doing
the Government
of Botswana failed to respect its international human rights
obligations.
56
At the time of the commencement of this case, no indication has been
given in the papers of any change of heart on the part of
the
Botswana government in regard to its aforesaid stance on the issue.
The
International Federation for Human Rights conducted an in-depth
international fact-finding mission to Botswana.
57
It investigated in depth the judicial system as well as the way in
which the death penalty was carried out in Botswana. It interviewed

a wide variety of Government officials, NGO’s, practitioners
and Parliamentarians.
58
In its report under the title “HASTY AND SECRETIVE HANGINGS”
it noted a number of remarkable deficiencies in the
judicial system
of Botswana:
1.
According to Mr Andrew Sesinyi, the Press Secretary of President
Festus Mogae “only one person has been granted clemency
after
being sentenced to death in Botswana since the country attained
independence in 1966”.
59
2.
In regard to whether the right to a fair trial is violated by the
system of
pro
deo
counsel, it established that the low fees payable to such counsel
resulted in
pro
deo
cases being handled by inexperienced lawyers lacking skills,
resources and commitments to handle such serious matters and this

detrimentally affected the rights of the accused.
60
3.
It recorded the fact that national and international debates on the
death penalty took place as a result of the execution of
Marietta
Bosch, the South African national, on 31 March 2001. Despite many
legal and constitutional challenges levelled against
the death
penalty in the courts of Botswana, the removal thereof had not yet
been successful.
61
4.
It found that the clemency procedure conducted by the Clemency
Committee constituted an opaque process. It was an executive
advisory
body upon which
inter
alia
the Attorney-General, the government’s principal legal advisor,
served as a member. It goes without saying that the ability
of the
Attorney-General to act independently from the president when
clemency cases are under consideration is seriously compromised.
This
Committee is permitted by law to act even in the absence of members
due to vacancies. The procedure in the Clemency Committee
is not open
to the public thus preventing any lawyer or members of the public to
know the criteria and legal basis of the recommendations
made by it
to the President. The Government also habitually communicates the
fact that a plea for clemency had been refused, only
after the
execution had been performed. In this respect the report concludes:
“
This
complete opaqueness is a serious threat to due process and the
administration of justice, and violates the right to seek pardon
or
commutation of the sentence, enshrined in Article 6, paragraph 4, of
the ICCPR.”
62
According
to Amnesty International, 137 countries have abolished the death
penalty. During 2007 twenty-four countries executed
1 252 people
compared to 1 591 during 2006. Currently there are still more than
20 000 prisoners on death row across the world.
63
Despite these rather disheartening statistics, there does appear to
be a worldwide decline in death penalty executions, presumably
due
to consistent activities of various anti-death penalty pressure
groups and the effect of various international human rights

instruments.
Ironically
and since 8 September 2000, Botswana became a signatory and a party
to the Convention against Torture. So did South
Africa.
64
It would, however, appear as if Botswana is not swayed by the
international trend to abolish the death penalty nor by the
consistent
labour of the various anti-death penalty pressure groups.
We
would opine that extradition of the applicants to Botswana would be
impermissible purely based upon its aforesaid track history
in
regard to the manner in which it has proven itself to be a flouter
of human rights as far as the implementation of the death
penalty is
concerned. This past conduct by Botswana makes it a pariah state not
synchronized with the majority of African countries
that have either
abandoned or are refusing to implement the death penalty. In our
view justice and fairness demands that Botswana
should not be the
preferred choice to obtain extradition orders from the Republic in
circumstances where its past conduct of
secretive hangings has led
to shock and outrage.
65
In addition, a requested state incurs responsibility if it has
reasonable grounds to foresee that violation of human rights will

occur in the requesting state and, nonetheless extradites the
criminal fugitives.
66
On this basis alone it would be permissible to grant the
applications and dismiss the counter applications. However, in view

of the importance of the issues at stake it is necessary to canvass
them in the light of the domestic constitutional law for
human
rights and all other relevant statutory law, both national and
international.
APPLICABLE
STATUTORY AND OTHER HUMAN RIGHTS INSTRUMENTS
A
good place to start is to remind oneself of the supremacy of our
Constitution. The relevant provisions of the
South
African Constitution, Act 108 of 1996
are the following:
1.
In section 1 of the Constitution it is stated that the Republic of
South Africa is one, sovereign, democratic State founded
on the
values of human dignity, the achievement of equality and the
advancement of human rights and freedoms and the
supremacy
of the Constitution and the rule of law.
It is an integral part of our constitutional law that courts in this
country are bound to achieve and advance equality, human rights
and
freedom.
2.
Section 2 states the following:
“
This
Constitution is the supreme law of the Republic; law or
conduct
inconsistent with it
is
invalid
,
and the obligations imposed by it must be fulfilled.” [Emphasis
added]
The
significance of this provision for present purposes is that any
conduct by a state department purporting to act in terms of
any law,
which conflicts with the principles enshrined in the Constitution, is
“invalid” and bound to be set aside
by the courts.
3.
Section 7 states the following:
“
7(1) This
Bill of Rights is a cornerstone of democracy in South Africa. It
enshrines the rights of
all
people in our country
and affirms the democratic values of human dignity, equality and
freedom.
(2)
The State
must
respect,
protect, promote and
fulfil
the
rights in the Bill of Rights.
(3)
The rights in the Bill of Rights are subject to the limitations
contained or referred to in section 36, or elsewhere in the
Bill.”
(Emphasis added)
These
provisions lay down unequivocally that the benefits of the Bill of
Rights must be afforded to all people within the borders
of South
Africa, whether they are citizens or foreigners legally or illegally
in the country. Messrs Tsebe and Phale cannot, therefore,
be denied
the protection of these benefits while they are still subject to the
territorial sovereignty of our government. The duty
to respect,
protect, promote, fulfil and therefore pass on these benefits and
protection to all and sundry, lays heavily on the
South African
government departments.
4. Section
8(1) states the following:
“
8(1) The
Bill of Rights applies to all law, and binds the legislature
,
the executive
,
the judiciary and all organs of state.” [Emphasis added]
This
section demands unquestionably complete obedience by both government
and the judiciary to the dictates of the Bill of Rights.
The courts
are the official watchdogs to ensure such compliance together with
the other constitutional institutions such as the
Public Protector
etc. All government departments are obliged to direct their actions
and decisions to comply with the dictates
of the Constitution.
5.
Section 9 provides as follows:
“
9(1)
Everyone
is equal before the law and has the right to equal protection and
benefit of the law.
(3)
The State may not unfairly discriminate directly or indirectly
against anyone on one or more grounds, including
…ethnic
or social origin
,
…and
birth
.”
[Emphasis added]
Without
a doubt, this provision forbids any conduct that discriminates
against people because of their ethnicity, birth or social
origin.
Hence, Messrs Tsebe and Phale, as ethnic citizens of Botswana may not
be treated differently to any other person in South
Africa if such
treatment constitutes discrimination, directly or indirectly. To deny
them protection against the death penalty
will constitute a clear
case of discrimination, since all other people in South Africa are
indeed protected against such punishment
in view of the
interpretation given to the right to life by the Constitutional
Court.
67
6.
Section 10 provides as follows:
“
Everyone
has inherent dignity and the right to have their dignity respected
and protected.”
For
purposes of this judgment, this provision obliges the Government of
South Africa to respect and protect all people in South
Africa even
though they may be criminals, local or foreign, and treat them in
order that their dignity as human beings will be
respected and
protected. This constitutional right is “inherent” to
every human being, whether they are criminals or
not.
68
7.
Section 11 provides:
“
Everyone
has the right to life.”
The
effect of this right has been referred to above and undoubtedly
protects Messrs Tsebe and Phale against execution by the imposition

of a death penalty.
8.
Section 12 provides:
“
(1)
Everyone has the right to freedom and security of the person, which
includes the right –
not
to be deprived of freedom arbitrarily or without just cause;
not
to be detained without trial;
to
be free from all forms of violence from either public or private
sources;
not
to be tortured in any way; and
not
to be treated or punished in a cruel, inhuman or degrading way
.”
[Emphasis added]
Section
12(1)(e) has been authoritatively held to be the cornerstone of the
argument against permitting execution by death penalties.
In South
Africa it is regarded as a cruel, inhuman and degrading punishment.
9.
Section 36 is the only limiting provision, which may come into play
in order to permit law and/or conduct which otherwise is

unconstitutional. It states:
“
36(1) The
rights in the Bill of Rights may be limited only in terms of law of
general application to the extent that the limitation
is reasonable
and justifiable in an open democratic society based on human dignity,
equality and freedom, taking into account all
relevant factors,
including ---
the
nature of the right;
the
importance of the purpose of the limitation;
the
nature and extent of the limitation;
the
relation between the limitation and its purpose; and
less
restrictive means to achieve its purpose.
(2) Except
as provided in subsection (1) or in any other provision of the
Constitution, no law may limit any right entrenched in
the Bill of
Rights.”
10.
Section 39(1) provides that a court, when interpreting the Bill of
Rights,
must
promote
the values of human dignity, equality and freedom and
must
consider
international law. Section 39(2) further provides:
“
When
interpreting
any
legislation
,
and when developing the common law or customary law, every court,
tribunal or forum
must
promote the
spirit,
purport and objects
of the Bill of Rights.” [Emphasis added]
The
Extradition
Act No. 67 of 1962
has the following relevant provisions:
In
clause 1 the term “associated State” means any foreign
State in respect of which section 6 applies.
As
to persons liable to be extradited, Section 3 provides:
“
3(1) Any
person accused or convicted of an offence included in an extradition
agreement and committed within the jurisdiction of
a foreign State a
party to such agreement, shall, subject to the provisions of this
Act, be liable to be surrendered to such State
in accordance with the
terms of such agreement, whether or not the offence was committed
before or after the commencement of this
Act or before or after the
date upon which the agreement comes into operation and whether or not
a court in the Republic has jurisdiction
to try such person for such
offence.
(2) Any
person accused or convicted of an extraditable offence committed
within the jurisdiction of a foreign State which is not
a party to an
extradition agreement shall be liable to be surrendered to such
foreign State, if the President has in writing consented
to his or
her being so surrendered.”
Section
9 of the Act provides for the holding of an enquiry before a
magistrate as soon as possible after the arrest of a foreigner
to
determine whether or not such person is to be surrendered to the
foreign state. Section 9(4) distinguishes between an enquiry
in
regard to someone from an associated state and one from a state
other than an associated state. It states the following:
“
9(4) At
any enquiry relating to a person alleged to have committed an offence
–
(a)
in a foreign State other than an associated State, the provisions of
section 10 shall apply;
in
an associated State –
the
provisions of section 10 shall apply in the case of a request for
extradition contemplated in section 4(1); and
(ii)
the provisions of section 12 shall apply in any other case.”
Summarised,
section 10 prescribes what the magistrate holding the enquiry is to
do where the arrested foreigner comes from a non-associated
state
and
is
also accused of having committed an offence. In such case the
magistrate is to determine whether or not there exists “sufficient

evidence to warrant a prosecution for the offence in the foreign
state concerned”. If such evidence does exist, the magistrate

issues an order committing the foreigner to prison to await the
Minister’s decision whether to extradite or not. Where
the
magistrate is of the opinion that insufficient evidence exists, the
person shall be discharged.
69
Section
11 empowers the Minister to extradite a foreigner in terms of
section 10 or to refuse to do so where criminal proceedings
are
pending against him/her or the foreigner is serving a sentence in
South Africa. In addition, as a further alternative, subsection

11(b)(iii) entitles the Minister to refuse extradition “at
all,” or if he is of the opinion
that
“for any other reason it would…be unjust or
unreasonable or too a severe punishment to surrender the person

concerned.”
Subsection 11(b)(iv) relates to the Minister’s powers in
regard to the surrender of refugees and is not pertinently relevant

to the present enquiry.
70
Section
12 applies directly to the facts of this case. Section 12(1) is
comparable in wording to section 10(1) save for the fact
that
section 12 deals with the extradition of a foreigner from an
“associated State” as contemplated in section 9(4)(b)

referred to above. Botswana is such an associated State by virtue of
the Extradition Treaty
71
concluded with South Africa as contemplated in section 6 of the Act.
In terms of section 12(1) the magistrate conducting the
enquiry
concerning a foreigner from an associated state who has committed an
offence may surrender such person to such state
subject to the
provisions of subsection (2). In terms of this latter subsection the
magistrate is given similar powers to that
held by the Minister to
refuse the extradition of a foreigner under section 11(b)(i) to
(iv). This power to refuse extradition
may only be exercised by the
magistrate in the case where the foreigner hails from an associated
state. It also provides for
non-surrender where the offender is
subject to criminal proceedings and the completion of serving a
sentence in South Africa
or “at all”. As a further
alternative the magistrate is also empowered to refuse extradition
if he/she is of the
opinion
“that
for any other reason it would…be unjust or unreasonable or
too severe a punishment to surrender the person
concerned.”
72
We
are of the view that the principles and statutory provisions
relating to the powers of deportation as provided for in the
Immigration
Act No. 13 of 200
2,
are not strictly in point to the facts of this case that concern
extradition of a foreigner who is or is not to be surrendered
to a
requesting state to stand trial for a capital crime where such
person may face a death sentence upon conviction. We will,
however,
return to the appropriateness of deportation of Messrs Tsebe and
Phale when dealing with the respondents’ contentions
in this
regard.
73
The
Constitution
of Botswana
contains the following relevant provisions:
Section
7 provides as follows:
“
(1)
No person shall be subjected to torture or to inhuman or degrading
punishment or other treatment.
(2)
Nothing contained in or done under the authority of any law shall be
held to be inconsistent with or in contravention of this
section to
the extent that the law in question authorises the infliction of any
description or punishment that was lawful in a
country immediately
before the coming into operation of this Constitution.”
Subsection
(2) is obviously intended to qualify the prohibition against inhuman
and degrading punishment. Presumably it is this
saving provision upon
which the Botswana government relies for its alleged lawful retention
of the death penalty.
2.
Section 51 deals with the Attorney-General in Botswana and section
51(3) provides as follows:
“
(3) The
Attorney-General shall be the principal legal adviser to the
Government.”
Section
51A makes provision for a Director of Public Prosecutions:
“
51A(1) There
shall be a Director of Public Prosecutions appointed by the President
whose office shall be a public office and who
shall be subject to the
administrative supervision of the Attorney-General.
(6)
In the exercise of the function 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 –
…
(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.”
In
section 53 a prerogative of mercy is afforded the President to grant
a convicted person pardon, a respite, a lesser sentence
or to remit
the whole or part of the punishment. Section 54 establishes an
advisory committee on the prerogative of mercy. This
section
provides:
“
54(1) There
shall be an advisory committee on the prerogative of mercy which
shall consist of –
(a)
the Vice-President or a Minister appointed by the President by
instrument in writing under his or her hand;
the
Attorney-General; and
a
person qualified to practice in Botswana as a medical practitioner,
appointed by the President by instrument in writing under
his or her
hand.
(4)
The committee may act notwithstanding any vacancy in its membership
and its proceeding shall not be invalidated by the presence
or
participation of any person not entitled to be present at or to
participate in those proceedings.
(5)
Subject to the provisions of this section, the committee may
regulate its own procedure.
55(1) Where
any person has been sentenced to death for any offence, the President
shall cause a written report of the case from
the trial judge,
together with such other information derived from the record of the
case or elsewhere as he or she may require,
to be considered at a
meeting of the advisory committee on the prerogative of mercy; and
after obtaining the advice of the committee
he or she shall decide
whether to exercise any of his or her powers under section 53 of this
Constitution.
(2)
The President may consult with the committee before deciding whether
to exercise any of his or her powers under the said section
53 in any
case not falling within subsection (1) of this section.”
Section
95 determines the jurisdiction and composition of the high courts.
What is singularly lacking is an unqualified statement
of judicial
independence of these courts. Section 95(1) provides as follows:
“
95(1) There
shall be for Botswana a high court which shall have unlimited
original jurisdiction to hear and determine any civil
or criminal
proceedings under any law and such other jurisdiction and powers as
may be conferred on it by this Constitution or
any other law.”
South
Africa and Botswana concluded an
Extradition
Treaty
during 1969.
South
Africa, Botswana and several other countries in Southern Africa
concluded a
PROTOCOL
ON EXTRADITION.
74
The extradition treaty in existence between South Africa and
Botswana is regarded as complimentary to the extradition protocol
of
the SADC.
75
The
Convention against Torture and other Cruel, Inhuman or Degrading
Treatment or Punishment
was entered into on June 26 1987.
1.
Article 3 provides as follows:
“
1.
No State party shall expel, return (‘refouler’) or
extradite the person to another State where there are substantial

grounds for believing that he would be in danger of being subjected
to torture.
2.
For the purposes of determining whether there are such grounds, the
competent authority 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.”
The
evidence referred to above in paragraphs [61] to [67] constitute in
our view proof of “ a consistent pattern of gross,
flagrant …
violations of human rights” as contemplated in the above
convention.
NATIONAL
LAW
We
shall now proceed to discuss and evaluate the effect our national
law has on the outcome of the two applications. In doing
so we shall
also deal with the parties’ respective arguments regarding the
interpretation and applicability of our constitutional

jurisprudence. Thereafter we will analyse and evaluate the effect of
international law on the issues in these applications.
The
right to life and the death penalty
What
follows here is an analysis of the right to life from a South
African perspective, its importance within our constitutional

framework, and its place within South Africa’s international
obligations. In doing so, we will also determine whether the
South
African authorities have limited the right to life of Mr Tsebe and
Mr Phale by authorising the extradition in casu and
whether such
limitation is justified.
The
first step in addressing the constitutional right to life in this
matter is to discuss its importance within South Africa’s

constitutional framework and to concentrate on its application
within the realm of the death penalty.
It
is clear that the death penalty is completely unconstitutional and
outlawed in South Africa. The Constitutional Court unanimously
held
in
S
v Makwanyane
[1995] ZACC 3
;
1995 (3) SA 391
(CC) that the death penalty constitutes inhuman and
degrading treatment, and that it cannot stand constitutional muster.
Despite
the clarity of
Makwanyane
,
the respondents submit that the decision is not binding on this
court for two reasons:
They
submit that the decision in
Makwanyane
should not be “literally interpreted.”
It
is further argued that it did not deal with a situation where, as
in this case, an assurance was called for and was refused.
It was
also argued that regard should be had to the context in which the
decision had to be made.
In
response to this, we must point out that the nature in which
Makwanyane
binds this court owes not to the specific circumstances of the case
but instead to the integral factor that has to be considered,
namely
the right to life in the face of the death penalty. The fact that
the
Makwanyane
case did not deal with a situation of extradition in which an
assurance was requested but refused, does not mean that its decision

as to the unconstitutionality of the death penalty finds anything
less than penultimate importance when considering the question

surrounding the right to life of Mr Tsebe and Mr Phale.
The
respondents do not clarify their warning against a “literal
interpretation” of
Makwanyane
.
However, we do not see how one could, when deciding whether to limit
the right to life, use any other interpretation.
Makwanyane
is absolute in its declaration that the death penalty is completely
unconstitutional with no exceptions. If this is then to be
the
literal interpretation of this decision in contrast to a figurative
interpretation thereof (whatever that may be), then we
are bound
thereby.
This
absolute binding nature of
Makwanyane
also disproves the respondents’ assertion that the context in
which it was decided has any effect on its relevance. The
court in
Makwanyane
did not qualify its judgment by stating that extradition (whether
coupled with an assurance or not) gives rise to any form of

exception from its ruling against the death penalty. Furthermore,
the only relevance of
Makwanyane
that the applicants wish to assert is its unqualified declaration of
the unconstitutionality of the death penalty. The arguments
of the
respondents in this regard cannot refute this.
The
seventh and ninth respondents, in paragraph 106 of their heads of
argument, claim that any prior decision to extradite the
applicant
will only remotely be connected to his execution. We disagree.
76
The fact that the death penalty in
casu
may possibly be imposed in Botswana and not South Africa, does not
mean that
Makwanyane’s
decision of the unconstitutionality of the death penalty does not
apply here. In this regard, the following dicta from
Makwanyane
is important:
“
Everyone,
including the most abominable of human beings, has the right to life,
and capital punishment is therefore unconstitutional.”
77
Justice
Mohamed furthermore stated the following in the
Makwanyane
judgment:
“
The
death penalty sanctions the deliberate annihilation of life. As I
have previously said, it ‘is the ultimate and the most

incomparably extreme form of punishment’…It is the last,
the most devastating and the most irreversible recourse of
the
criminal law, involving as it necessarily does, the planned and
calculated termination of life itself; the destruction of the

greatest and most precious gift which is bestowed on all humankind.”
78
It
is clear that the Constitutional Court in this ruling did not intend
on qualifying these statements. The court specifically
refers to
“everyone”. It is clearly meant that this declaration on
unconstitutionality shall apply to everyone who
has rights under The
Bill of Rights, which includes all persons within the territory of
the Republic. Furthermore, this declaration
of unconstitutionality
is not limited to persons within the territory who face the death
penalty at the hands of the South African
executive only. The
Constitutional Court intended to protect everyone to whom the South
African Constitution applies from capital
punishment in any manner
or form that it may present itself. We are of the opinion that this
includes protection from the imposition
of the death penalty abroad.
The
Constitutional Court
79
went further and stated the following at paragraph [144]:
“
The
rights to life and dignity are the most important of all human
rights
,
and the source of all other personal rights in chap 3. by committing
ourselves to a society founded on the recognition of human
rights
we
are required to value these two rights above all others. And this
must be demonstrated by the State in everything that it does,

including the way it punishes criminals
.”
[Emphasis added]
The
Constitutional Court importantly stated here that South Africa is
required to value the right to life in “everything
that it
does”. This certainly requires the right to life to be
respected when the State decides whether or not to extradite
a
person in the circumstances that we now face, thus confirming
Makwanyane’s
relevance and importance to the matter at hand.
In
addition to the absolute outlawing of the death penalty in
Makwanyane
,
it was also held in
Mohamed
and Another v President of the RSA and Others
2001 (3) SA 839
(CC) that such prohibition also affects the
extradition of foreigners to countries where the death penalty is
still applied.
In
Mohamed
,
the first applicant faced extradition to the United States of
America to be prosecuted for his involvement in the bombing of
two
USA embassies, one in Nairobi and one in Dar es Salaam. These crimes
were punishable with the death penalty in the USA.
The
facts of
Mohamed
are thus essentially similar to the facts of this case. The integral
difference, according to the respondents, is that the facts
in
Mohamed
show that the South African government failed to request an
assurance from the USA that Mohamed, if extradited, would not face

the death penalty under any circumstances, whereas such assurances
were sought but were not provided by Botswana.
We
do not agree that this minor factual difference between the matter
at hand and the
Mohamed
case leads to the latter not binding this court. The assertion of
the respondents is clearly that the
Mohamed
case merely required that an assurance be requested by the South
African government, and that this request on its own (whether
it is
complied with or not) constitutes grounds upon which to extradite
the persons concerned. This cannot be seen as an adequate
attempt by
the South African government to protect the right to life, which we
have already determined is paramount and derogable,
that would
justify the limitation of such right.
Furthermore,
this contention of the respondents regarding the non-binding nature
of
Mohamed
,
is clearly refuted in the case itself at paragraph [37] where the
following was said about Mohamed’s extradition:
“
Therefore,
even if it were permissible to deport Mohamed to a destination to
which he had consented and even if he had given his
informed consent
to such removal, the government would have been
under
a duty to secure an undertaking
from the United States authorities that a sentence of death would not
be imposed on him, before permitting his removal to that
country.”
[Emphasis added]
The
wording in
Mohamed
is thus clear. It is not sufficient merely to request an assurance
or undertaking; such assurance or undertaking must have been
secured
before an extradition may occur in these instances. Therefore, the
issue in
Mohamed
revolves around whether an assurance has been attained, not merely
requested, making the central facts analogous. The South African

authorities, in being refused an assurance despite their request,
have therefore failed to attain such assurance. Such failure

constitutes an absolute bar to extradition to a country where the
death penalty still survives.
Mohamed
makes the following important statement at paragraph [37] regarding
the death penalty as a punishment:
“
[T]he
Constitution not only enjoins the South African government to promote
and protect these rights but precludes it from imposing
cruel,
inhuman or degrading punishment.
The
Constitution also forbids it knowingly to participate, directly or
indirectly, in any way in imposing or facilitating the imposition
of
such punishment
.”
[Emphasis added]
The
court stated further at paragraph [53]:
“
The
fact that Mohamed is now facing the possibility of a death sentence
is the direct result of the failure by the South African
authorities
to secure such an undertaking. The causal connection is clear between
the handing over of Mohamed to the FBI for removal
to the United
States for trial without securing an assurance against the imposition
of the death sentence and the threat of such
a sentence now being
imposed on Mohamed.”
The
first respondent also asserts that Mr Tsebe’s (and
consequently Mr Phale’s) removals from South Africa and
placement
in Botswana would be justified as constituting the
deportation of an illegal immigrant in terms of
sections 32(2)
and
34
(1)
3
STYLE="font-size: 13pt">
80
of the
Immigration
Act 13 of 2002
.
We do not accept this argument.
It
has already been determined that
Mohamed
is applicable to the facts in question. Therefore, on the topic of
extradition and deportation, the following dicta is found
at
paragraphs [41] and [42]:
“
[41] Deportation
and extradition serve different purposes. Deportation is directed to
the removal from a state of an alien who has
no permission to be
there. Extradition is the handing over by one State to another State
of a person convicted or accused there
of a crime, with the purpose
of enabling the receiving State to deal with such person in
accordance with the provisions of its
law.
The
purposes may, however, coincide where an illegal alien is deported to
another country which wants to put him on trial for having
committed
a criminal offence the prosecution of which falls within the
jurisdiction of its courts
.
[42] Deportation
is usually a unilateral act while extradition is consensual.
Different procedures are prescribed for deportation
and extradition,
and those differences may be material in specific cases, particularly
where the legality of the expulsion is challenged.
In
the circumstances of the present case, however, the distinction is
not relevant. The procedure followed in removing Mohamed to
the
United States of America was unlawful whether it is characterised as
a deportation or an extradition. Moreover, 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.” [Emphasis added]
Therefore,
the obligation of the South African government to gain an assurance
from Botswana (which is again emphasised by paragraph
[42] of
Mohamed
as being more than a mere request for such assurance) applies
whether Mr Tsebe and Mr Phale’s removals from South Africa

were to be justified in terms of either the
Immigration Act or
the
Extradition Act.
Mohamed
therefore binds the South African authorities to refuse the
extradition and the causal connection identified by
Mohamed
at paragraph [53] will clearly exist should this court choose to
authorise the extraditions of Mr Tsebe and Mr Phale. The
circumstances
relied upon by the Minister of Justice in paragraph 83
of his replying affidavit, are, in our view, insufficient to justify
any
distinction of or departure from
Mohamed
.
Is
the limitation of the right to life justified
?
Accepting
now that Mohamed is in fact binding, it is our view that the South
African authorities acted unlawfully in authorising
the extraditions
without attaining the assurances that were requested.
If
the extraditions at hand were to be effected, then the rights held
by Mr Tsebe and Mr Phale, by virtue of them being human
beings
within the territory of our democratic republic, would be removed
and replaced with the rights afforded to persons in
Botswana, which
do not include the right not to be put to death by the executive
should they be convicted. Therefore, extraditing
a person to a
country in which they are likely to face the death penalty does
constitute a limitation of such person’s
right to life in
terms of the South African Constitution.
Given
the importance afforded to the right to life in the face of the
death penalty by
Makwanyane
and because there are no legal grounds upon which either Mr Tsebe or
Mr Phale could be extradited to Botswana, the limitation
of their
right to life cannot be justified in terms of section 36 of the
Constitution.
A
safe haven for criminals
The
respondents submit on numerous occasions that refusing the
extradition of persons in the position of Mr Tsebe and Mr Phale

creates the impression that South Africa is a safe haven for
criminals from abroad and that unwarranted advantage is being taken

of our Constitution.
The
respondents also assert that this would endanger the lives of South
African citizens and that any harm caused by Mr Tsebe
and Mr Phale
would lay squarely on the shoulders of the judiciary for failing to
send them back to Botswana to face the death
penalty.
This
claim is, however, not supported with any real evidence or proper
legal argument. It constitutes conjecture and speculation.
Even if
it were true, that does not empower this court to disregard the
important decisions of
Makanyane
and
Mohamed
.
We cannot question the Constitutional Court and the Constitution
itself based on unproven assertions.
Furthermore,
section 35(h) of the Constitution affords Mr Phale and did afford Mr
Tsebe the right to be presumed innocent until
proven guilty. The
court cannot factor into its decision the possibility that Mr Phale
will continue, or Mr Tsebe would have
continued, to commit crimes
when their guilt in relation to their offences committed in Botswana
has yet to be determined by
that country’s courts or our own.
Dugard
and Van den Wyngaert state in their article titled “Reconciling
Extradition with Human Rights”,
81
that in extradition cases certain factors have to be considered. In
some cases supporters of the death penalty are of the view
that
limitations on extradition create a “safe haven” for
serious offenders as a country is then pressurised into
giving an
assurance that they would not normally grant. Dugard is of the view
that this can be reconciled if an amicable agreement
can be reached
between the affected states. At page 187 he states:
“
Inevitably,
there is a tension between the claim for the inclusion of human
rights in the extradition process and the demand for
more effective
international cooperation in the suppression of crime, which
resembles the tension in many national legal systems
between the ‘law
and order’ and human rights approaches to criminal justice. As
in domestic society, it is necessary
to strike a balance between the
two so as to establish a system in which crime is suppressed and
human rights are respected.”
[107] He
is of the opinion that the
Soering
v United Kingdom
,
11 Eur Human. Rts. Rep. 439 (1989) case is the perfect example of how
an extradition in the circumstances faced by the court should
be
dealt with. The outcome in that case has been supported by a wealth
of scholarly writing.
82
He states that in
Soering
,
the demands of the general interests of the community were met as the
accused was arrested and sent to the United States to stand
trial.
However, the individual’s fundamental rights were protected as
the United States had to guarantee that he would not
receive capital
punishment. In his view, it is in the interest of all nations that an
offender who flees to another country should
be brought to justice,
but not at the expense of the right to life.
[108]
According to Dugard’s view, which this court agrees with,
South Africa would not stand as a safe haven to criminals
if
requesting states were prepared to give assurances against the death
penalty. If only this compromise could be reached with
Botswana,
justice could still be served, and non-imposition of the death
penalty in the requesting state would be a small price
to pay.
Botswana’s refusal to co-operate is strange seen in the light
of the PROTOCOL
83
as well as the Extradition Treaty
84
in existence. Both documents to which Botswana is bound contemplate a
prohibition against extradition where the requesting state
has
retained the death penalty and the requested state has abolished it.
Both provide for the supply of the necessary assurances
for the
extradition to go through. Botswana was aware of these provisions and
its attempt to obtain extradition without complying
with these
provisions appears somewhat opportunistic.
[109] However,
the grant of assurances is not the only possible solution to such an
impasse. Dugard discusses varieties of conditional
extraditions which
would overcome this problem. It is not, however, necessary for
purposes of this judgment to traverse these possibilities.
INTERNATIONAL
LAW
[110] It
is correct that capital punishment is not outlawed by international
law. In this regard, Chaskalson P stated in
Makwanyane
at paragraph [36]:
“
[36] Capital
punishment is not prohibited by public international law and this is
a factor that has to be taken into account in
deciding whether it is
cruel, inhuman or degrading punishment within the meaning of s 11(2).
International human rights agreements
differ, however, from our
Constitution in that, where the right to life is expressed in
unqualified terms, they either deal specifically
with the death
sentence, or authorise exceptions to be made to the right to life by
law. This has influenced the way international
tribunals have dealt
with issues relating to capital punishment, and is relevant to a
proper understanding of such decisions.”
[111] Dugard
supra
at page 196 states the following:
“
No
human rights convention outlaws the death penalty, although protocols
to the International Covenant on Civil and Political Rights,
the
European Convention on Human Rights and the American Convention on
Human Rights do so. All Western European states have abolished
this
penalty
de
facto
or
de
jure
,
but it is still a lawful penalty in many states. Neither
usus
nor
opinio
juris
therefore supports such a prohibition under international law. In
Soering
the European Court of Human Rights was obliged to base its finding on
the death row phenomenon rather than on the death penalty
itself
because the latter is not outlawed by either the European Convention
or customary law, while the former as a form of inhuman
and degrading
treatment is so prohibited. However, in
Kindler
v. Canada
the UN Human Rights Committee held that, ‘while States Parties
are not obliged to abolish the death penalty totally, they
are
obliged to limit its use.’”
[112] Extradition
matters are a combination of national and international law. On the
one hand, extradition itself occurs between
two nations and
extradition agreements or treaties usually exist between the nations
concerned (as is the case with South Africa
and Botswana). On the
other hand, the actual decision whether to extradite and to enforce
such extradition is performed in terms
of the national law of the
country requested to extradite the person concerned (hence the
application of South African law above).
[113] Section
233 of our Constitution states that international law binds the
Republic
insofar
as it is not in conflict with the Constitution
.
This has a very important implication for this matter, which will be
discussed below.
[114] Although
not strictly speaking part of international law, the right to life
has been recognised and applied in international
law. Brief examples
will follow below:
In
1948, the Universal Declaration of Human Rights as adopted by the
United Nations General Assembly declared in Article 3 that

“everyone has the right to life, liberty and security of
person.”
In
1950, the European Convention on Human Rights was adopted by the
Council of Europe declaring a protected human right to life
in
Article 2.
In
1966 the International Covenant on Civil and Political Rights was
adopted by the United Nations General Assembly. Article
6.1 states
that “every human being has the inherent right to life. This
right shall be protected by law. No one shall
be arbitrarily
deprived of his life.”
85
Article
4 of the African Charter on Human and People’s Rights also
makes provision for the protection of one’s right
to life.
86
Furthermore,
the above instruments of international law have been applied and
respected on numerous occasions by domestic and
regional courts
around the world in matters of extradition.
[115] In
Soering
the European Court of Human Rights ruled that Soering’s
extradition to the United States without an assurance that capital

punishment would not be imposed constituted a violation of Article 3
of the European Convention on Human Rights. One should, however,
note
that this case compelled the court to base their finding on the
“death row phenomenon” rather than the death penalty

because the latter is not outlawed by either the European Convention
or customary law, while the former as a form of inhuman and
degrading
treatment, is so prohibited. In this particular case a German
national, Jens Soering and his girlfriend murdered her
parents in
Bedford, Virginia. He then fled to the United Kingdom where he was
arrested. Both Germany and the United States requested
that Soering
be extradited. Germany based their argument on the fact that their
national laws permit prosecution of nationals for
certain crimes
committed outside the territory. Germany had at that point abolished
the death penalty whereas Virginia had not.
The United States had to
provide the assurance required and it was only then that Soering was
extradited and sentenced to ninety-nine
years in prison.
[116] The
Supreme Court of Canada has held that the extradition of a suspect to
a country where the death penalty will be imposed
is constitutionally
prohibited. In
Minister
of Justice v Burns and Rafray
,
2001 SCC 7
S. C. Canada, both accused persons were charged with
first-degree murder in Washington, United States. The Canadian
Minister of
Justice signed an extradition order for both men refusing
to seek assurances that the death penalty would not be imposed upon
them
once they return to the United States. Both men appealed this
aspect of the matter. The Supreme Court of Canada ultimately held

that article 7 of the Canadian Charter of Rights and Freedoms
precluded the defendant’s extradition without assurances that

the United States would not seek the death penalty.
[117] The
Italian Constitutional Court has taken a step further in this regard
by refusing to extradite suspects even in the face
of assurances. In
the case of
Venezia
v Ministero di Grazia & Giustizia 79 Rivista di Diritto
Internazionale
815 (1996), the Italian Constitutional Court held that under no
circumstances would Italy extradite an individual to a country
where
the death penalty existed despite assurances that the death penalty
would not be imposed or, if imposed, would not be implemented.
[118] It
must be noted that in none of the abovementioned cases, did any of
the courts indicate that the ascertainment of an assurance
can be in
any way equated to the mere request for one. This is in line with the
judgment of
Mohamed
and refutes the suggested interpretation by the respondents of this
case.
[119] It
is trite that the right to life has limitations in both domestic and
international law. Furthermore, it is trite that the
death penalty is
not outlawed by international law and stands as a limitation to the
right to life in certain countries, including
Botswana. However,
these limitations do not find application in this matter.
[120] The
reason for this is that the right to life is being examined through
the prism of the South African Constitution in light
of the death
penalty and the limitation that such penalty imposes on the right.
Because the death penalty is absolutely outlawed
in South Africa by
the
Makwanyane
decision, any limitations in international law to the right to life
are immediately in conflict with our Constitution when applied
to
this matter, as these limitations can only find application insofar
as they form part of the rationale behind the death penalty.
As
explained in light of
Makwanyane
,
this is a rational that finds no place in South Africa’s
constitutional democracy.
[121] Therefore,
any international law principles that may seek to justify the
imposition of the death penalty by Botswana are not
binding on this
court and any attempt to satisfy them would be unconstitutional.
Section 233 of the Constitution does not allow
for international law
to be applied if it is contrary to the Constitution. However,
international law that is in accordance with
the Constitution is
binding on the Republic.
[122] Bearing
this in mind, we refer back to the general international law
principles that enunciate the right to life (see paragraphs
[114] to
[117] above). These parts of international law, insofar as they do
not allow for a limitation of life under the death
penalty, are
binding on the Republic. Therefore, South Africa is bound by its
Constitution as well as the international law that
conforms with its
Constitution, to protect the right to life and should refuse
extradition in circumstances such as those faced
by this court.
[123] Given
that an extradition is performed in terms of domestic law, which is
the law of South Africa, and given that the Constitution
affirms that
it is the supreme law of South Africa,
87
the extraditions of Mr Tsebe and Mr Phale had to conform fully with
the Constitution, and thus be accompanied with an assurance
from
Botswana, despite any international obligations to the contrary.
[124] Therefore,
there can be no international law obligations on South Africa to
extradite anyone to their possible deaths at the
hand of the
executive of another state as it would be contrary to our
Constitution and invalid. Quite to the contrary, South Africa
is
bound to honour international obligations that would prevent the
extraditions in questions.
COMITY
OF NATIONS
[125] The
last factor to consider is the relationship between Botswana and
South Africa in light of the circumstances.
[126] Comity
of nations as defined in the Shorter Oxford Dictionary is the
courteous and friendly understanding by which each nation
respects
the laws and usages of each other so far as may be
without
prejudice to its own rights and interests
.
[127] In
Hilton
v Guyot
,
159 U.S. 133
, the American Supreme Court expressed the following
opinion:
“
No
law has any effect beyond the limits of the sovereignty from which
its authority is derived. The extent to which one nation shall
be
allowed to operate within the dominion of another nation depends upon
the comity of nations. Comity is neither a matter of absolute

obligation nor a mere courtesy and good will. It is a recognition
which one nation allows within its territory to the legislative,

executive or judicial acts of another nation,
having
due regard both to international duty and convenience and to the
rights of its own citizens or other persons who are under
the
protection of its laws. The comity thus extended to other nations is
not impeachment of sovereignty. It is the voluntary act
of the nation
by which it is offered and is inadmissible when contrary to its
policy or prejudicial to its interests
.
But it contributes so largely to promote justice between individuals
and to produce a friendly intercourse between the sovereignty
to
which they belong, that courts of justice have continually acted
upon, as a part of the voluntary law of nations. It is not
the comity
of the courts but the comity of the nation which is administered and
ascertained in the same way and guided by the same
reasoning by which
all other principles of municipal law are ascertained and guided.”
[Emphasis added]
[128] Comity
of nations is therefore customary international law. Extradition
works on both an international and domestic level
in South Africa and
although the interplay of the two may not be severable they are
distinct. On the international plane, a request
from one state to
another for the extradition of a particular individual and the
response to the request will be governed by the
rules of public
international law. The main issue is the relation between states.
Comity,
however, requires that a state comply with its own domestic laws
.
[129] In
summary, therefore, Botswana has to bear in mind and take into
consideration that South Africa’s domestic laws and

constitution have procedures in place that have to be adhered to.
South Africa stands to suffer the most prejudice if Botswana
fails to
provide the assurance required in extradition matters as its rights
and interests as set out in the Constitution will
be violated.
Botswana has to take heed of the fact that
Makwanyane
and
Mohamed
were hailed as setting an example to the rest of Africa and failure
to abide by our own cases could create the impression that
South
Africa does not value its own constitution. Botswana can only have
itself to blame for the Republic’s refusal to extradite
the
applicants. As indicated above, it is out of synchrony with the trend
worldwide to abolish the death penalty; it has an appalling
history
of “secret executions” in regard to its implementation of
the death penalty; its constitution does not induce
confidence that
the clemency provisions are applied in a humane and independent
manner; the international investigative reports
as to the quality and
fairness of its judicial system when dealing with capital crimes are
less than complimentary; the international
instruments that binds it
contemplate that extradition would be refused by the Republic; the
national law of the republic to its
knowledge prohibits the
extradition; and there is no international law which would force the
republic to extradite under these
circumstances.
[130] For
the reasons set out above the following order is made in respect of
both case numbers 2010/27682 and 2010/51010:
1.
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 circumstance;
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 respondents
that the applicant
will not be subject to the death penalty in Botswana under any
circumstances;
Directing
the first and second respondent and any other party who opposed the
relief sought herein to pay the applicants’
costs inclusive of
the cost of two counsel.
The
counter-applications are dismissed with costs which are to include
the costs of two counsel.
THUS
DONE AND SIGNED AT JOHANNESBURG ON THIS 22
nd
DAY OF SEPTEMBER 2011
____________________
P.
M. MOJAPELO
DEPUTY
JUDGE PRESIDENT OF THE SOUTH GAUTENG HIGH COURT
I
agree
_______________________
C.
J. CLAASSEN
JUDGE
OF THE HIGH COURT
I
agree
_______________________
G.
BIZOS
ACTING
JUDGE OF THE HIGH COURT
Counsel
for the first Applicant
in
the Tsebe
application
:..................................................
:Adv
Katz SC
…
.....................................................................................
:Adv
du Plessis
…
.....................................................................................
:Adv
Lewis
Counsel
for the Second Applicant
in
the Tsebe
application:
..................................................
:Adv
S. Budlender
…
......................................................................................
:Adv
Brickhill
Counsel
for the Minister of Home Affairs;
Minister
of International Relations and Cooperations:
.....
:Adv
Schippers SC
…
......................................................................................
:Adv
Mayosi
Counsel
for the Minister of Justice and
Constitutional
Development; and
Government
of South Africa:
............................................
:Adv
Donen
…
.......................................................................................
:AdvPoswa-Lerotholi
Argument
was heard on: 23 - 24 May 2011
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 5
th
respondent. The 3
rd
respondent filed no opposition to the
Phale
application.
3
See the
Phale
application, record page 481.
4
See Annexure “GS1”, the Death Report from Correctional
Services, Krugersdorp, record page 614.
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
[2007] ZACC 21
;
2008 (1) SA 474
(CC) at paragraph
[32]
.
6
6
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.
(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.”
See record page 300.
9
See Annexure “JTR8”, record page 343.
10
See record page 246 as read with Dambe’s affidavit,
paragraphs 4 and 5 at page 259 of the record. These documents from

part of the extradition application, record pages 244 to 326.
11
See record page 243.
12
12
Section
11(b)(iii) of the Extradition Act 67 of 1962 also provides that the
Minister may order that a person shall
not
be
surrendered if in all the circumstances of the case it would “be
unjust or unreasonable
or
too severe a punishment to surrender the person concerned
”.
Similarly, Article 3(1) of the Convention against Torture provides
as follows:
“
No
State party shall expel, return (‘refouler’) or
extradite a person to another State where there
are
substantial grounds for believing that he would be in danger of
being subjected to torture.
”
13
13 See
Annexure “JTR7” record page 341.
14
See
record page 344.
15
See Annexure “JTR8”, record page 385.
16
See Annexure “JTR9”, record pages 392/3.
17
See Annexure “JTR10”, record page 394 as read with
paragraph 3.14 on page 401.
18
See
Annexure “JTR11”, record pages 407/8.
19
See
Annexure “JTR2”, record page 232.
20
See Annexure “JTR14” dated 29 July 2009, record pages
423 to 427.
21
See Annexure “JTR13”, record page 410 as read with page
414.
22
See
paragraph 83.21 of the Minister of Justice’s A/A in the
Phale
case
at page 229 and paragraph [58] below.
23
See
the
Lotus
case
1927 PCIJ Reports, Series A no 10 at pages 18 to 20.
24
See Annexure “JTR12”, record 409.
25
See Annexure “ET1” at page 36 of the record.
26
See
the F/A, paragraphs 37 and 38 as read with par 152 of the 7
th
respondent’s A/A, record page 213, and par 60 of the 1
st
and 2
nd
respondents’ A/A, record page 470.
27
See Annexure “MA5”, record page 519.
28
See Annexure “MA7”, record page 522.
29
See Annexure “MA12”, record page 528.
30
See Annexure “MA13”, record page 534.
31
See Annexure "ET2”, record pages 37/8.
32
See Annexure “ET4”, record page 42.
33
See Annexure “ET22”, record page 115.
34
See Annexure “ET5” record pages 43/4.
35
See Annexure “ET6”, record page 47.
36
See
the registrar’s date stamp on page 1 of the record.
37
See page 266 of the record.
38
See Annexure “JTR2”, record page 268.
39
See record page 279.
40
See
Annexure “JTR3” pages 273 to 283.
41
See Annexure “JTR6”, record pages 296 to 298.
42
See Annexure “JTR5”, record page 295.
43
See Annexure “JTR7”, record page 367.
44
See paragraph 32 of the A/A, record page 204.
45
The letter is supposedly attached as Annexure “JP3” but
only the copy of the first portion of such letter appears
at page 34
of the record. It will however be assumed that similar allegations
as to the legality of the detention were made
in that letter as the
one written to the respondents in the Tsebe case.
46
The
reason for this statement is most likely to be found in the fact
that all the documentation for extradition addressed to the
DOJ &CD
was in the name of “Jerry Phale” and not “Pitsoe”.
47
See Annexure “JP5”, record page 36.
48
See
pages 222 to 230 of the record.
49
See
paragraph 83.14 at page 226 of the record.
50
See
paragraph 83.21 at page 229 of the record.
51
See Annexure “JTR15”, record page 428 in the
Tsebe
application.
52
See
Tsebe
application,
paragraph 97.8.1 of the R/A of Ms Snyman at page 581 of the record
as read with pages 683 to 688 thereof.
53
See
Tsebe,
Annexure “GS4”, record page 683 and paragraph 52 on page
687.
54
See
Tsebe,
Annexure “GS5”, record pages 689 to 716.
55
See
Tsebe,
Annexure “GS5”, record page 716.
56
See
Tsebe,
Annexure “GS6”, record page 720.
57
See
Tsebe,
Annexure “GS3”, record pages 646-682.
58
See
Tsebs,
record page 679.
59
See
Tsebe,
paragraph 3.2, record page 663.
60
See
Tsebe,
paragraph 3.4.2, record page 666.
61
See
Tsebe,
paragraph 3.6, record page 670.
62
See
Tsebe,
paragraph 3.7.1, record pages 671 and 672.
63
See
Tsebe,
Annexure “JTR16”, record pages 429 to 431.
64
See
Tsebe
Annexure “JTR17”, record pages 433 and 434.
65
In
the United States extradition was refused where it was held to be
“blatantly unjust” to do so. See
Ahmed
v Wigen
726
F.Supp. 389
, 411 (E.D.N.Y. 1989). In Canada courts have also applied
this test. See
Canada
v Schmidt
,
[1987]
1 S.C.R. 500
, 522 (per La Forest J). In
Ross
v United States
,
[1994]
93 Can. Crim. Cas. (3
rd
)
500, 538 (B.C.Ct. App.) Finch J said that it all comes down to the
question whether the judges were “shocked” or
“outraged”
by the foreign system.
66
See
“RECONCILING EXTRADITION WITH HUMAN RIGHTS” by John
Dugard and Christine Van den Wyngaert, Vol 2 w92 A.J.I.L 187
(April
1998) at 191
in
fin.
67
See
S
v Makwanyane
[1995] ZACC 3
;
1995 3 SA 391
(CC)
68
See
paragraph [82] below.
69
“10(1) If
upon consideration of the
evidence
adduced at the enquiry
referred to in section 9(4)(a) and (b)(i) the magistrate finds that
the person brought before him or her is liable to be surrendered
to
the foreign State concerned
and
,
in the case where such person is
accused
of an offence
,
that there is sufficient evidence to warrant a prosecution for the
offence in the foreign State concerned, the magistrate shall
issue
an order committing such person to prison to await the Minister’s
decision with regard to his or her surrender, at
the same time
informing such person that he or she may within 15 days appeal
against such order to the Supreme Court.
(2) For purposes
of satisfying himself or herself that there is sufficient evidence
to warrant a prosecution in the foreign State
the magistrate shall
accept as conclusive proof a certificate which appears to him or her
to be issued by an appropriate authority
in charge of the
prosecution in the foreign State concerned, stating that it has
sufficient evidence at its disposal to warrant
the prosecution of
the person concerned.
(3)
If the magistrate finds that the evidence does not warrant the
issue of an order of committal or that the required evidence
is not
forthcoming within a reasonable time,
he
shall
discharge
the person brought before him.
(4)
The magistrate issuing the order of committal shall forthwith
forward to the Minister a copy of the record of the proceedings

together with such report, as he may deem necessary.”
70
11.
The Minister may -
(a) order any
person committed to prison under section 10 to be surrendered to any
person authorised by the foreign State to
receive him or her; or
(b) order
that a person shall
not
be surrendered
:
(i) …
(ii) …
(iii)
at
all
,
or before the expiration of a period fixed by the Minister, if he or
she is satisfied that by reason of the trivial nature of
the offence
or by reason of the surrender not being required in good faith or in
the interest of justice or that for any other
reason it would,
having regard to the distance, the facilities for communication and
to all the circumstances of the case, be
unjust or unreasonable or
too severe a punishment to surrender the person concerned; or
(iv) if he or she
is satisfied that the person concerned will be prosecuted or
punished or prejudiced at his or her trial in a
foreign State by
reason of his or her gender, race, religion, nationality or
political opinion.
71
See
Tsebe,
Annexure
“JTR2” at pages 231 to 241 of the record.
72
12(1)
If upon consideration of the evidence adduced at the enquiry
referred to in section 9(4)(b)(ii) the magistrate finds that
the
person brought before him or her is liable to be surrendered to the
associated State concerned, the magistrate shall, subject
to the
provisions of subsection (2), issue an order for his or her
surrender to any person authorised by such associated State
to
receive him or her at the same time informing him or her that he or
she may within 15 days appeal against such order to the
Supreme
Court.
(2) The magistrate
may order that the person brought before him or her shall not be
surrendered –
(a) …
(b) …
(c)
at
all,
or before the expiration of a period fixed by him or her, or make
such order as to him or her seems just if he or she is of the

opinion that –
(i) by reason of
the trivial nature of the offence or by reason of the surrender not
being required in good faith or in the interest
of justice, or that
for any other reason it would, having regard for the distance, the
facilities for communication and to all
the circumstances of the
case, the unjust or unreasonable or too severe a punishment to
surrender the person concerned; or
(ii) the person
concerned will be prosecuted or punished or prejudiced at his or her
trial in the associated State by reason of
his or her gender, race,
religion, nationality or political opinion.”
73
See
paragraphs [95] to [97] below.
74
See
Annexure “JTR13”
Tsebe
case
record pges 410 to 421.
75
See
article 19.
76
See
further at paragraph [94] below.
77
See
paragraph [392] per Sachs J at page 521B.
78
See
paragraph [265]
79
Per
Chaskalson P
80
Section
32 provides as follows:
“
32(1) Any
illegal foreigner shall depart, unless authorised by the
Director-General in the prescribed manner to remain in the
Republic
pending his or her application for a status.
(2) Any
illegal foreigner shall be deported.”
Section
34 has the following provisions that are relevant:
“
34(1) Without
the need for a warrant, an immigration officer may arrest an illegal
foreigner or cause him or her to be arrested,
and shall,
irrespective of whether such 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…”
Section
34(1)(d) further provides that such detention may not be longer than
30 calendar days without a court warrant and may
be extended by
court for no longer than a further period of 90 calendar days. It is
common cause that in respect of Mr Phale
the respondents acted in
contravention of these provisions.
81
American
Journal of International Law, April 1998 pages 187 to 212
82
At
p 195
in
fin
,
Dugard states:
“
More
important, the three premier nongovernmental international law
associations – the Institute of International Law, the

International Law Association and the International Association of
Penal Law – have approved reports recommending that
both
executive and judicial authorities should refuse extradition where
there is a real risk that a fugitive’s human rights
will be
violated in the requesting state. The American Law Institute’s
Restatement
(Third) of the Foreign Relations Law of the United States
also recognizes that extradition ‘is generally refused if the
requested state has reason to believe that extradition is
requested
for purposes of persecution…or if there is substantial ground
for believing that the person sought will not
receive a fair trial
in the requesting state.’ The most far-reaching recommendation
is that of the Institute of International
Law in its resolution
entitled New Problems of Extradition, adopted in 1983, which
provides that extradition may be refused ‘in
cases where there
is a well-founded fear of the violation of the fundamental rights of
an accused in the territory of the requesting
State.’ Several
supporters of this resolution indicated that human rights, as
jus
cogens
,
prevailed over extradition treaties.”
83
Article
4(f) provides for a mandatory refusal to extradite:
“
if the person whose
extradition is requested has been, or would be subjected in the
Requesting State to torture or cruel, inhuman
or degrading treatment
or punishment …”
Article 5(c) provides for
optional refusal to extradite:
“
if the offence for which
extradition is requested carries a death penalty under the law of
the Requesting State, unless that State
gives such assurance, as the
Requested State considers sufficient that the death penalty will not
be imposed or, if imposed,
will not be carried out. ..”
84
Article
6 of the Extradition Treaty deals with capital punishment. It
provides as follows:
“
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.”
85
The
following sections of the ICCPR also protects the origin and
ethnicity of peoples from discrimination and prohibits cruel
and
inhuman punishment:
“
Article 2.1
Each State party to the present covenant undertakes to respect and
to ensure to all individuals within its territory
and subject to its
jurisdiction the rights recognised in the present covenant, without
distinction of any kind, such as…national
or social
origin…birth or other status.
Article 7 No one
shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment. In particular, no one
shall be subjected
without his free consent to medical or scientific experimentation
Article 16 Everyone
shall have the right to recognition everywhere as a person before
the law.
Article 26 All
persons are equal before the law and are entitled without any
discrimination to the equal protection of the law.
In this respect,
the law shall prohibit any discrimination and guarantee all persons
equal and effective protection against
discrimination on any ground
such as…national or social origin…birth or other
status.”
86
Additional
relevant articles of the African Charter are:
“
Article 1:
The member States of the organisation of African unity parties to
the present charter shall recognise the rights,
duties and freedoms
enshrined in this charter and shall undertake to adopt legislative
or other measures to give effect to them.
Article 2: Every
individual shall be entitled to the enjoinment of the rights and
freedoms recognised and guaranteed in the present
charter without
distinction of any kind such as…national and social
origin…birth or other status.
Article
3.1. Every individual shall be equal before the law.
3.2. Every
individual shall be entitled to equal protection of the law.
Article 4: Human
beings are inviolable. Every human being shall be entitled to
respect for his life and the integrity of his
person. No one may be
arbitrarily deprived of this right.
Article 5: Every
individual shall have the right to the respect of the dignity
inherent in a human being and to the recognition
of his legal
status. All forms of exploitation and degradation of man
particularly slavery, slave trade, torture, cruel, inhuman
or
degrading punishment and treatment shall be prohibited.”
87
Section
2 of the Constitution