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[2001] ZACC 18
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Mohamed and Another v President of the Republic of South Africa and Others (CCT 17/01) [2001] ZACC 18; 2001 (3) SA 893 (CC); 2001 (7) BCLR 685 (CC); 001 (2) SACR 66 (CC) (28 May 2001)

CONSTITUTIONAL
COURT OF SOUTH AFRICA
CCT 17/01
KHALFAN KHAMIS MOHAMED
…..................................................
First
Applicant
ABDURAHMAN DALVIE
…...........................................................
Second
Applicant
and
PRESIDENT OF THE REPUBLIC OF
SOUTH AFRICA
AND SIX OTHERS
…...............................................................................
Respondents
and
THE SOCIETY FOR THE ABOLITION OF
THE DEATH
PENALTY IN SOUTH AFRICA
THE HUMAN RIGHTS COMMITTEE TRUST
….................................
Amici
Curiae
Heard on : 10 May 2001
Decided on : 28 May 2001
JUDGMENT
THE COURT:
[1]
The first applicant before this Court, Mr Khalfan Khamis Mohamed
(“Mohamed”), is currently standing trial on a
number of
capital charges in a federal court in New York. He alleges that the
relief sought in the proceedings in this Court
could have a bearing
on the criminal trial which started some months ago. For that reason
the preliminary steps for a hearing
in this Court were foreshortened
and, with the cooperation of counsel for the parties, set-down was
expedited.
1
It is necessary to describe the nature of each of the two cases and
to explain their interrelationship.
[2] The case before this Court
is an urgent application for leave to appeal against a judgment in
the Cape of Good Hope High Court.
2
In that Court
3
the applicants sought declaratory and mandatory relief against the
government
4
arising out of Mohamed’s arrest in Cape Town on 5 October
1999, his subsequent detention and interrogation there by South

African immigration officers and his handing over to agents of the
United States Federal Bureau of Investigation (“the
FBI”)
for interrogation and removal two days later to New York, there to
stand trial.
[3] The argument advanced on
behalf of the respective parties will be analysed in detail later.
Suffice it to say by way of introduction
that the main contention on
behalf of the applicants (supported by the
amici
curiae
5
)
was that Mohamed’s arrest, detention, and handing over by the
South African authorities to the FBI agents and his removal
by them
to the United States were part and parcel of a disguised extradition
in breach of the law. More particularly the South
African
authorities were said to have breached the provisions of the Aliens
Control Act
6
(“the Act”) and the regulations published thereunder.
7
Even more pertinently, Mohamed’s constitutional right to life,
to dignity and not to be subjected to cruel, inhuman or
degrading
punishment
8
had allegedly been infringed.
[4] The factual substratum of
the case for the applicants was gleaned from documents that had been
made available to their legal
representatives pursuant to two
interlocutory orders on the government for their disclosure. The
thrust of the consequential
relief the applicants unsuccessfully
sought in the High Court and pursued in this Court was a declaration
to the effect that—
(i) the arrest, detention,
interrogation and handing over of Mohamed to the FBI agents were
unlawful and unconstitutional; and
(ii) the respondents breached
Mohamed’s constitutional rights by handing him over to the
custody of the United States without
obtaining an assurance from the
United States government that it would not impose or carry out the
death penalty on him if convicted.
[5] The mandatory relief sought
pursuant to this declaration was an order “[d]irecting the
Government of the Republic of
South Africa to submit a written
request through diplomatic channels to the Government of the United
States of America, that
the death penalty not be sought, imposed nor
carried out upon [Mohamed]” should he be convicted in the
criminal trial.
[6] The crux of the
government’s contentions, which carried the day in the court
below, was that Mohamed was an illegal
immigrant whom the
immigration authorities had properly decided to deport and whose
deportation was mandated by the Act. Such
deviations as there might
have been from the literal prescripts of the Act or the regulations
were of no legal consequence. Nor
did the collaboration between the
South African officials and the FBI agents whereby Mohamed was
eventually removed to the United
States make any difference to his
status or his liability to deportation. Moreover, so the court held,
on the evidence of the
immigration officials, which could not be
rejected in motion proceedings, Mohamed had been duly apprised of
his rights and had
freely elected to accompany the FBI officers
without delay to the United States, there to stand trial with his
comrades. Finally,
so the government contended and the court found,
a court had no power to issue the mandamus sought, which would in
any event
have no efficacy. On 20 April 2001 the High Court
delivered its judgment, comprehensively dismissing the contentions
advanced
on behalf of the applicants and refusing the relief they
had sought.
[7] That is when the applicants
approached this Court as a matter of urgency, asking for condonation
for non-compliance with the
ordinary procedures for appeals to this
Court and for leave to bring an appeal directly here.
9
On the face of it there was manifest urgency and, with the active
cooperation of all concerned, the matter was ripe for hearing
within
three weeks of delivery of the judgment below. The Court is grateful
to all who made this possible. With this description
of the nature
of and backdrop to the proceedings in this Court, we turn to outline
the other case which is currently under way
in New York.
[8] That case, a criminal
trial, arises from events that took place on 7 August 1998 in
Nairobi and Dar es Salaam. That morning,
in quick succession, the
United States embassies in those two cities were rocked by violent
explosions that all but destroyed
them. In Nairobi 212 were killed
and more than 4 500 injured and in Dar es Salaam 11 were killed and
85 injured. A federal grand
jury had been sitting in New York since
the mid-nineties investigating the activities of an organisation
called Al Qaeda founded,
led and financed by a Saudi
multi-millionaire, Usama bin Laden. The grand jury concluded that
the attacks on the two embassies
were the work of Al Qaeda in its
ongoing international campaign of terror against the United States
and its allies.
[9] Later, the grand jury
indicted 15 men on a total of 267 counts, including conspiracy to
murder, kidnap, bomb and maim United
States nationals; conspiracy to
destroy United States buildings, property and national defence
facilities; bombing of the two
embassies and murder of the 223
persons there killed. Of the 15 named and indicted conspirators,
four are currently on trial:
Mohamed and three other men. Mohamed is
a Tanzanian national by birth and lived there until recently.
According to the indictment,
he procured a false passport in May
1998, rented a house, bought a motor vehicle for use by the
conspirators and actively participated
in the preparations for the
bombing of the Dar es Salaam embassy.
[10] Mohamed obtained a
visitor’s visa from the South African High Commission in Dar
es Salaam the day before the explosions
and left Tanzania by road
the day after. Travelling via Mozambique to South Africa he entered
the country on 16 August 1998 and
travelled to Cape Town where he
obtained employment — and later lodgings — with the
second applicant, Mr Abdurahman
Dalvie (“Dalvie”). In
due course he applied for asylum — under his assumed name and
on spurious grounds —
and was afforded enhanced temporary
residence status. He was issued with a temporary residence permit
that had to be renewed
periodically pending the decision on his
application for asylum. As far as is known, Mohamed lived and worked
quietly in Cape
Town during the ensuing year while his application
was being processed.
[11] In the meantime, however,
Mohamed had been indicted by the grand jury and on 17 December 1998
a warrant for his arrest was
issued out of the Federal District
Court for the Southern District of New York on charges of “murder,
murder conspiracy
[and] attack on US facility”. The following
month Interpol, Washington DC, at the request of the FBI, put out an
international
“wanted” notice with photographs and a
description of Mohamed, listing “murder of US nationals
outside the
United States; conspiracy to murder US nationals outside
the United States; attack on a federal facility resulting in death”

and cautioning that he should be considered armed and dangerous.
[12] From about 12 August 1999,
the South African Police Service and the Department of Home Affairs
were aware of the investigation
by the FBI into the bombings of the
two American embassies and were asked to provide it with information
concerning another suspect
named Ally Hassan Rehani. Then on 30
August 1999 an FBI agent identified Mohamed while searching through
the asylum-seekers records
in Cape Town with the permission of the
seventh respondent, the Chief Immigration Officer, Department of
Home Affairs, Cape Town,
Mr Christo Terblanche (“Terblanche”).
These records contain both fingerprints and photographs of
applicants for asylum
and the agent was able to make the
identification despite the pseudonym Mohamed used.
[13] The next day, Terblanche
sent the Directorate: Alien Control, Department of Home Affairs Head
Office in Pretoria a copy of
the warrant for Mohamed’s arrest
as well as copies of an associated letter to Interpol and the FBI
“wanted”
poster. In the covering letter Terblanche
requested that Mohamed be declared a prohibited person as a matter
of urgency
10
and stressed that it was of the
utmost importance that he be stopped should he try to leave South
Africa.
[14] In the week of 13
September 1999 the second and sixth respondents, the Minister of
Justice and Constitutional Development
and the National Director of
Public Prosecutions (“the Minister” and “the NDPP”
respectively), were in
Washington DC for the signing of a new
extradition treaty between South Africa and the United States to
replace one dating from
1951. A political offence exception
11
that had been contained in the
1951 treaty was not re-embodied in the new treaty, which has not yet
come into force. Also, the
new treaty introduced a provision for the
surrender of a fugitive with his or her consent without further
extradition proceedings.
12
While in the United States the Minister and the NDPP were invited
guests at an in-depth FBI briefing session in New York concerning

the Nairobi and Dar es Salaam embassy bombings. They were informed
that a suspect was residing in Cape Town and that FBI agents
were
“working on apprehending” him. According to a Department
of Foreign Affairs report on the meeting, the Minister
at one point
observed:
“
that
the FBI should not merely discontinue their relationship with their
counterpart agencies in SA once they had achieved their
objective of
apprehending the suspected bomber and bringing him to the US to
stand trial.”
[15] At about the same time,
13
two meetings were held at the
offices of the Independent Directorate for Organised Crime (“IDOC”).
At the first, attended
by Terblanche and an FBI special supervisory
agent, senior representatives of IDOC were informed:
“
of
the combined investigation between Immigration and the FBI into
fugitives connected to the bomb attacks on US embassies in
Nairobi,
and Dar Es Salaam on 8 August 1998".
The second meeting, attended by
the same people and also by the NDPP and the Deputy Director-General
of the National Intelligence
Agency, was:
“
convened
to discuss possible links between the fugitives an [sic] local
terrorist attacks and a possible national threat. Also
under
discussion was the new treaty signed between South Africa and
America on 16 September 1999 where Mr Ngcuka and Minister
P Maduna
[were] briefed on the two bombings and possible arrests in South
Africa.”
[16] Mohamed was due to call at
the refugee receiving office in Cape Town by 5 October 1999 for the
extension of his temporary
residence permit
14
and members of the Aliens
Control Unit together with members of the FBI started a surveillance
programme there on 2 October 1999
in anticipation of his calling.
This he did on the morning of 5 October 1999 at 09:15 and was
arrested there and then. Present
were Terblanche, an FBI agent and
an immigration officer. According to Terblanche, he warned Mohamed:
“
as is
customary after all arrests, that I [Terblanche] was an immigration
officer, that he was under arrest, that he was under
no duty to say
anything to me but that anything he did say might be used in
evidence against him, and that he was entitled to
a legal
representative if he so wished.”
This is disputed by the
applicants. Be that as it may, Mohamed was taken to a car waiting in
the basement of the building and
driven to a holding facility at
Cape Town International Airport, where he was questioned by
Terblanche and a colleague of his,
a Mr Christians.
[17] According to an affidavit
by Terblanche the questioning was conducted by Christians, who
prefaced the session with an explanation
that they:
“
wanted
to ask him questions in order to verify his status in the country.
[Christians] asked [Mohamed] whether he had any objection
to
answering questions and again told [Mohamed] that he was entitled to
a legal representative if he so wished. He said, too,
that if
[Mohamed] did not co-operate he might be further charged under the
provisions of the Aliens Act. [Mohamed] responded
simply by saying
‘I will tell you everything you want to know.’ The first
question Mr Christians asked him was ‘What
is your name?’
The answer to this was ‘Khalfan Khamis Mohamed.’ In
other words, the first answer [Mohamed]
gave was an admission that
he had entered the country under a false name and passport.”
Although the applicants
disputed some of these allegations by Terblanche, it is not
necessary to engage in any detailed analysis
of the contested
material. It is common cause that an interrogation of some two hours
or more ensued and that Christians typed
up a statement running to
close on three pages of single-spaced typing covering in extensive
detail Mohamed’s life from
his birth in Zanzibar to his
departure for South Africa, his family set-up, the circumstances of
his acquiring the false passport,
and chapter and verse of his
journey to Cape Town and his sojourn there.
[18] What the statement does
not minute is any warning as to the protection against
self-incrimination or the right to remain
silent. There is no
mention of the right to legal representation, nor that any such
rights were waived. Although Terblanche and
Christians alleged in
their affidavits that Mohamed had been given a choice as to whether
he should be removed from South Africa
to Tanzania or the United
States and had expressed a clear and reasoned preference for the
latter, the statement is silent on
the point. Indeed, as Terblanche
and Christians would have it, Mohamed feared for his life at the
hands of vengeful Tanzanians
should he be repatriated. He wanted to
join with his comrades in the glory of being tried for their heroic
conduct and, God willing,
15
to die for the cause. The
statement lacks any intimation that the bar placed on removal from
South Africa within 72 hours of a
deportee’s arrest, contained
in section 52 the Act, was drawn to Mohamed’s attention.
Terblanche and Christians alleged
that Mohamed had freely and
unreservedly — even brazenly — disclosed his part in the
terrorist plot to bomb the embassies
in Nairobi and Dar es Salaam;
yet the statement is silent on the topic. Perhaps that is because
the South African officials felt
the bombing of the United States
embassies was none of their business but it is curious that there is
no indication that Mohamed’s
possible contact with terrorists
in South Africa was investigated. After all, Mohamed’s alleged
connection with the embassy
bombings had prompted Terblanche to
stress to his head office that Mohamed should not be allowed to
leave the country and the
meeting with IDOC and the senior officials
had been convened to discuss possible links between Mohamed and
“local terrorist
attacks and a possible national threat”.
[19] However, as will become
apparent later, the statement, both as to what it says and, more
specifically, as to what it does
not say, is ultimately of no real
significance. In any event, as to what passed between Mohamed and
the immigration officers
there is a conflict of evidence that cannot
be resolved on the papers.
[20] After he had signed the
Christians transcript, Mohamed was handed over to members of the
FBI. He was interrogated by them
over a period of two days, during
which he made a lengthy statement, the contents of which are so
potentially prejudicial to
the security of the United States that
its publication has been embargoed by the trial judge and did not
form part of the data
disclosed in the High Court. The statement
has, however, been admitted in evidence before the jury in the
United States and apparently
comprises a comprehensive and damning
confession of Mohamed’s enthusiastic and unrepentant
participation in the murderous
bombing of the Dar es Salaam embassy.
[21] During the afternoon of
Mohamed’s arrest four immigration officials, three FBI members
and a person described by Terblanche
as “a State department
official”, presumably an American, searched, photographed and
chemically examined Mohamed’s
lodgings at Dalvie’s
house. They told Dalvie that they:
“
had
come to collect [Mohamed’s] goods as he was being sent back to
Tanzania because he had entered the country under false
names. Mr
Dalvie asked whether it would help to get a lawyer to represent
[Mohamed] and [Terblanche] said [Dalvie] could do that,
but in [his]
view it would be a waste of money, because [Mohamed] had admitted
entering the country with a false document. The
Dalvies did ask
whether they could see [Mohamed], and [Terblanche] said no, because
[he] knew that [Mohamed] was being held in
a restricted area of the
airport, barred to the public, for which a visitor’s permit
would not be issued.”
[22] The manifest and settled
intention on the part of the United States government agents, both
in New York when they briefed
the Minister and the NDPP in
mid-September and thereafter in Cape Town, was to take Mohamed to
New York to stand trial for the
vicious crimes he had committed
against their country. Terblanche does not explain how, in the face
of this, he could truthfully
have told the Dalvies that Mohamed was
due to be sent to Tanzania. Nor does he say why it would have been
futile for Mohamed
to have been afforded the benefit of independent
legal advice. Indeed, according to Terblanche and Christians, the
latter had
at the outset of the interrogation expressly informed
Mohamed of his right to legal representation.
[23] It is also hardly
conceivable that Terblanche and his three colleagues present at the
time of Dalvie’s enquiry could
have been unaware of the
provisions of section 52 of the Act, in a sense their charter, and
the breathing space it affords prohibited
persons facing
deportation. There was no pressing urgency if Mohamed were to be
sent to Tanzania. Moreover, Terblanche’s
suggestion that
access for Dalvie to the detainee could not have been arranged also
rings singularly hollow. Terblanche was,
after all, the Chief
Immigration Officer who had planned and executed Mohamed’s
arrest, who had taken him to the holding
facility at the airport and
who was clearly in control of the man and in overall charge of the
case. Indeed, the excuse is so
lame as to be disingenuous. If, for
some unexplained reason, permission for access to the holding
facility was not in Terblanche’s
gift and could not be
procured from the (unnamed) repository of this power, there was no
reason why Terblanche could not have
had Mohamed removed to any
other safe place.
[24] The inference is well nigh
irresistible that the Dalvies were fobbed off to ensure that Mohamed
would continue to be denied
access to a lawyer and would remain
incommunicado. That might then give rise to the even more sinister
inference that Mohamed
was deliberately kept isolated and uninformed
in order to facilitate his removal by the FBI agents. However, these
issues were
not adequately canvassed in the court below and there
may possibly be some less sinister construction to put on the proven
facts.
In any event, for reasons that will become plain later, the
handing over of Mohamed for removal to the United States, as well as

the subsequent removal, were on the respondents’ own showing
in breach of the Act and infringed Mohamed’s constitutional

rights.
[25] On 6 October 1999, after
the FBI had questioned Mohamed, Detective Captain Barkhuizen of the
South African Police Service
questioned him in connection with
bombing incidents in the Western Cape and specifically a bombing
that had been perpetrated
at a restaurant called Planet Hollywood
shortly after Mohamed’s arrival in the country. Barkhuizen
satisfied himself that
Mohamed could not be linked to urban terror
in the Western Cape.
[26] Later on 6 October Mohamed
was delivered into the custody of the FBI for removal by them to the
United States. From the outset,
the case made out by the applicants
was that such delivery was in breach of the Act and infringed
Mohamed’s constitutional
rights. They challenged the propriety
of the delivery and removal, saying they constituted a disguised
extradition which infringed
Mohamed’s right to claim that the
South African authorities stipulate as a condition of his removal to
the United States
that an undertaking be given by the United States
authorities that the death penalty would not be sought or carried
out. Although
Terblanche deposed to more than one affidavit dealing
with the point, and although the NDPP also traversed the contention
in
an affidavit, it can nevertheless not be ascertained with any
certainty when — and by whom — the decision was taken
on
behalf of the South African government to hand Mohamed over to the
American government.
[27] What is known is that an
aeroplane was specially sent from the United States to fetch Mohamed
and that he was flown out of
South Africa on 6 October 1999 in the
custody of a number of FBI agents, accompanied by a United States
Attorney for the Southern
District of New York
16
and a medical doctor. They
arrived in New York the next day and the day thereafter Mohamed
appeared in the Federal Court for the
Southern District of New York
on the charges mentioned above. The trial judge formally notified
him that he faced the death penalty
on a number of the charges.
[28] That, then, is the factual
matrix in which the legal issues are to be considered. We turn to
address them now. They are,
in the order they will be addressed:
(i) The validity of the
deportation of Mohamed.
(ii) Deportation or extradition
involving the possibility of capital punishment.
(iii) The legal efficacy of
consent to deportation or extradition.
(iv) The relief sought.
The validity of the
deportation in the present case
[29] In principle there is a
clear distinction between extradition and deportation.
17
Extradition involves basically
three elements: acts of sovereignty on the part of two states; a
request by one state to another
state for the delivery to it of an
alleged criminal; and the delivery of the person requested for the
purposes of trial or sentence
in the territory of the requesting
state. Deportation is essentially a unilateral act of the deporting
state in order to get
rid of an undesired alien. The purpose of
deportation is achieved when such alien leaves the deporting state’s
territory;
the destination of the deportee is irrelevant to the
purpose of deportation. One of the important distinguishing features
between
extradition and deportation is therefore the purpose of the
state delivery act in question. Where deportation and extradition
coincide in effect, difficulties can arise in practice in
determining the true purpose and nature of the act of delivery. This

will, to the extent relevant to the present case, be dealt with
later in this judgment.
[30] In its judgment the court
below relied heavily on British and Commonwealth authority on the
question of extradition and deportation.
In argument in this Court
counsel for the government did likewise. In Britain and the rest of
the Commonwealth the universally
accepted view has long been that
surrender may not be granted in the absence of a treaty obligation
and statutory warrant; at
the very least there must be statutory
warrant. In this regard Lord Denning MR stated the following in
R
v Brixton Prison (Governor), Ex parte Soblen
:
18
“
It is unlawful, therefore, for the Crown
to surrender a fugitive criminal to a foreign country unless it is
warranted by an extradition
treaty with that country.”
19
[31] In Britain the Crown has
had a royal prerogative to expel aliens and send them home, whenever
it considered that their presence
in Britain was not conducive to
the public good.
20
This prerogative has, at least
since 1953, been supplanted by statute. Under the Aliens Order 1953
there was a power in the Crown
to deport an alien if the Secretary
of State “deems it to be conducive to the public good”
under article 20(2)(b)
21
and in terms whereof the Home
Secretary was clearly empowered to choose the ship or aircraft and
thus the alien’s destination.
The Aliens Order has been
replaced by section 3(5)(b) and schedule 3 of the Immigration Act,
1971, which likewise supplant the
prerogative.
[32] The position in this
country must be considered in the light of the Constitution and the
relevant legislation. In
President
of the Republic of South Africa and Another v Hugo
22
this Court came to two
important conclusions regarding prerogative powers under the interim
Constitution. First, the powers of
the President which are contained
in section 82(1) of the interim Constitution have their origin in
the prerogative powers exercised
under former constitutions by South
African heads of state; second, there are no powers derived from the
royal prerogative which
are conferred upon the President other than
those enumerated in section 82(1).
23
This is equally so under the
present Constitution and its equivalent provisions and was expressly
so held in
Hugo
.
24
The powers of the President
under the present Constitution originating from the royal
prerogative are those in section 84(2).
This subsection does not
provide for any power to deport an alien.
[33] Accordingly the state’s
power to deport, relevant to the present case, can be derived only
from the provisions of the
Act. Chapter VI, in sections 44 to 51,
deals extensively with the state’s power to deport prohibited
persons and non-citizens.
None of these provisions empowers the
state to determine the destination of such deportation, but
regulation 23, promulgated
under the provisions of section 56, does.
[34] Regulation 23, dealing
with the destination of such removal, reads as follows:
“
23.
Any person to be removed from the Republic under the Act, shall —
(a) if he or she is the holder
of a passport issued by any other country or territory, be removed
to that country or territory;
or
(b) if he or she is not the
holder of such a passport —
(i) be removed to the country
or territory of which he or she is a citizen or national; or
(ii) and if he or she is
stateless, be removed to the country or territory where he or she
has a right of domicile.”
[35] Counsel devoted much time
in argument to the question whether the provisions of this
regulation are peremptory or not. In
our view such an approach is
too narrow. The additional question is whether the destinations
enumerated in regulation 23 constitute
a closed category. The word
“shall”, which introduces the provisions of paragraphs
(a) and (b) dealing with what
is to be done with a person who “is
to be removed from the Republic under the Act”, is clearly
mandatory in form
and there is nothing in the context to indicate
the contrary. Once it has been decided to remove such person and
such decision
persists, whether the decision to remove is obligatory
or permissive, the state has no discretion but to remove the person
to
the destination as prescribed in paragraphs (a) and (b). The
further question, however, is whether the state has any power
regarding
the determination of the destination to which the person
is to be removed under this regulation over and above that provided

for in the regulation.
[36] In our view it clearly has
not. The state has no remaining prerogative power to deport, for
such power is not included in
section 84(2) of the Constitution. Its
power to deport and determine the destination of such deportation
can only be found within
the four corners of the Act and the
regulations. In terms of regulation 23 such power is limited,
regarding destination, to the
places mentioned in paragraphs (a) and
(b) thereof and determined in the manner therein prescribed. In any
event it is clear
that regulation 23 comprehensively covers all
possibilities; the person with a passport, the person who is a
citizen or national
of a country and the stateless person. It covers
the field of any common law power the state might have had.
[37] It is common cause on the
facts of this case that if the destination of deportation is to be
determined exclusively by the
provisions of regulation 23, the
United States is not a destination permitted by the regulation. It
follows that in the present
case the South African authorities were
not empowered to deport Mohamed to the United States. The argument
on behalf of the government
that Mohamed allegedly consented to his
deportation to the United States and that such consent validated
such deportation will
be considered later.
Deportation or extradition
and the death penalty
[38] The lawfulness of the
conduct of the South African immigration officers in handing over
Mohamed to the FBI for them to take
him to the United States was
challenged on a further, even more fundamental and entirely
different basis. The argument is derived
from the obligation imposed
on the South African state by the Constitution to protect the
fundamental rights contained in the
Bill of Rights.
25
The rights in issue here are
the right to human dignity, the right to life and the right not to
be treated or punished in a cruel,
inhuman or degrading way.
26
According to the argument the
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.
In particular, so the argument
runs, this strikes at the imposition
of a sentence of death. 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.
[39] The cornerstone of this
argument is the finding of this Court in
S
v Makwanyane and Another
27
that capital punishment is
inconsistent with the values and provisions of the interim
Constitution. When, subsequent to this decision,
the Constitutional
Assembly came to deal with a Bill of Rights for the “final”
Constitution, capital punishment was
raised as an issue and the
question whether there should be an exception to the right to life
permitting such punishment was
debated.
28
No such exception was, however,
made; nor is there anything in the 1996 Constitution to suggest that
the decision in
Makwanyane
has ceased to be
applicable. On the contrary, the values and provisions of the
interim Constitution relied upon by this Court
in holding that the
death sentence was unconstitutional are repeated in the 1996
Constitution. The importance of human dignity
to which great weight
was given in
Makwanyane
is emphasised in the 1996
Constitution by including it not only as a right, but also as one of
the values on which the state is
founded.
29
[40] In the various judgments
given in
Makwanyane
the history of
capital punishment, its application in South Africa under apartheid,
the attitude of other countries to such punishment,
and the
international trend against capital punishment in recent times were
dealt with at length. This Court, after a full and
detailed
consideration of the relevant provisions of the interim Constitution
and the arguments for and against capital punishment,
concluded
unanimously that the death sentence was inconsistent with the values
and provisions of the interim Constitution. There
is no need to
cover that ground again. It should be added, however, that the
international community shares this Court’s
view of the death
sentence, even in the context of international tribunals with
jurisdiction over the most egregious offences,
including genocide.
30
Counsel for the government
correctly accepted that capital punishment is also inconsistent with
the values and provisions of the
1996 Constitution and that the
issues in this appeal must be dealt with on the basis of the
decision in
Makwanyane
.
[41] As had been the case in
the High Court, much of the argument in this appeal was directed to
the question whether the removal
of Mohamed to the United States was
a deportation or a disguised extradition. The distinction was said
to be this. If he was
deported that would have been a lawful act on
the part of the South African government. The fact that Mohamed was
to be “deported”
to the United States where he would
immediately be put on trial for an offence that carried the death
penalty was not relevant.
There is nothing in our Constitution that
precluded the government from deporting an undesirable alien, or
that required it to
secure an assurance from the United States
government that the death sentence would not be imposed on Mohamed
if he were to be
convicted. If, however, what happened was in
substance an extradition, it would have been unlawful because the
correct procedures
were not followed. Moreover, if the removal had
been effected by way of extradition, it might have been necessary to
secure an
assurance from the United States government as a condition
of the extradition that the death sentence would not be imposed.
31
[42] 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.
[43] 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.
[44] Mohamed entered South
Africa under an assumed name using a false passport. He applied for
asylum giving false information
in support of his application and
was issued with a temporary visa to enable him to remain in South
Africa while his application
was being considered. Those facts
justified the South African government in deporting him. That,
however, is only part of the
story, for the crucial events are those
that happened after Mohamed had secured his temporary visa. Having
been identified by
the FBI as a suspect for whom an international
arrest warrant had been issued in connection with the bombing of the
United States
embassy in Tanzania, he was apprehended by the South
African immigration authorities in a joint operation undertaken in
cooperation
with the FBI. Within two days of his arrest and contrary
to the provisions of the Act he was handed over to the FBI by the
South
African authorities for the purpose of being taken to the
United States to be put on trial there for the bombing of the
embassy.
On his arrival in the United States he was immediately
charged with various offences relating to that bombing and was
informed
by the court that the death sentence could be imposed on
him if he were convicted. That this was likely to happen must have
been
apparent to the South African authorities as well as to the FBI
when the arrangements were made for Mohamed to be removed from
South
Africa to the United States.
[45] Another suspect, Mr
Mahmoud Mahmud Salim, alleged to be a party to the conspiracy to
bomb the embassies, was extradited from
Germany to the United
States. Germany has abolished capital punishment and is also party
to the European Convention on Human
Rights. The German government
sought and secured an assurance from the United States government as
a condition of the extradition
that if he is convicted, Salim will
not be sentenced to death. This is consistent with the practice
followed by countries that
have abolished the death penalty.
[46] Recently, in
Minister
of Justice v Burns,
32
the Supreme Court of Canada had
occasion to reconsider its attitude to the extradition of fugitives
to a country where they would
face the death penalty. It had
previously been held by a majority of that Court in
Kindler
v Canada (Minister of Justice)
33
and
Reference
re Ng Extradition (Canada)
34
that there was no obligation on
Canada before extraditing a suspect to a country that has the death
penalty to seek an assurance
from the receiving state that the death
penalty will not be imposed. In a unanimous judgment the Court held
in
Burns
35
that in the light of
developments since the decisions in
Kindler
and
Ng
,
there is now an obligation on the Canadian government, in the
absence of exceptional circumstances, to seek such an assurance.
The
Court deliberately refrained from anticipating what those
circumstances might be.
36
[47] The decision in
Burns
turned on section 7 of the Canadian Charter which provides that:
“
[e]veryone
has the right to life, liberty and security of the person and the
right not to be deprived thereof except in accordance
with the
provisions of fundamental justice.”
The two suspects whose
extradition was sought faced charges of murdering the father, mother
and sister of one of them, in what
are described in the judgment as
“brutal and shocking coldblooded murders”. After
weighing the factors for and against
extradition without assurances,
the Court concluded that in the circumstances of that case,
extradition without assurances that
the death penalty would not be
imposed violated the principles of fundamental justice, and was not
justifiable under section
1 of the Charter.
37
[48] Our Constitution provides
that “everyone has the right to life”.
38
There are no exceptions to this
right. However, like all other rights in the Bill of Rights, it is
subject to limitation in terms
of section 36 of the Constitution.
The requirements prescribed by section 36 are that the limitation
must be reasonable and justifiable
in an open and democratic society
based on human dignity, equality and freedom, taking into account
all relevant factors including
those mentioned in the section.
39
These considerations were taken
into account by this Court in
Makwanyane
in holding that capital
punishment was not justifiable under the interim Constitution. In
the light of these provisions of our
Constitution we can revert to
the argument mentioned above
40
that a “deportation”
or “extradition” of Mohamed without first securing an
assurance that he would not
be sentenced to death or, if so
sentenced, would not be executed would be unconstitutional.
[49] In
Makwanyane
Chaskalson P said that by
committing ourselves to a society founded on the recognition of
human rights we are required to give
particular value to the rights
to life and dignity, and that “this must be demonstrated by
the State in everything that
it does”.
41
In handing Mohamed over to the
United States without securing an assurance that he would not be
sentenced to death, the immigration
authorities failed to give any
value to Mohamed’s right to life, his right to have his human
dignity respected and protected
and his right not to be subjected to
cruel, inhuman or degrading punishment.
[50] Counsel for the government
contended that although this requirement might be applicable to
extraditions, it is not applicable
to deportations. In support of
this contention he relied on a series of Canadian cases the last of
which is
Halm v
Canada (Minister of Employment and Immigration)(T.D.)
42
and on the judgment of the
Court of Appeal of England and Wales in
Soblen
.
43
These cases dealt with the
validity of deportation proceedings in circumstances where the
deported person was likely to face a
criminal charge in the country
to which he or she was to be deported. In all the cases a challenge
to the procedure adopted based
on a contention that there should
have been a resort to extradition and not deportation was rejected.
[51] The decisions in these
cases are referred to in the judgment of the High Court. They are,
however, not directly relevant
to the question that has to be
decided in the present case, which depends upon the values and
provisions of our Constitution.
Soblen
’s case was
decided before the implementation in Britain of the European
Convention on Human Rights. At that time there
were no
constitutional or treaty constraints which curtailed the powers of
the executive. The only question was whether the removal
of the
applicant complied with the requirements for deportations under
English law. The Court held that it did. That decision
is of little
assistance in deciding what our Constitution required our government
to do in the present case.
[52] The Canadian cases were
all decided before the decision of the Supreme Court of Canada in
Burns
.
Canadian law did not then consider the removal of a person to
another country where he or she would face a death sentence to
be
contrary to the principles of fundamental justice. In
Kindler,
La Forest J suggested that
there is no reason why the same considerations should not apply to
deportations and extraditions in
determining what is required to
meet the standards of the fundamental principles of justice.
44
The deportation cases may
therefore have to be reconsidered by the Canadian courts in the
light of the decision in
Burns
if in the future deportation
rather than extradition is used as the means of removing a fugitive
to a country where he or she
faces the death penalty.
[53] But whatever the position
may be under Canadian law where deprivation of the right to life,
liberty and human dignity is
dependent upon the fundamental
principles of justice, our Constitution sets different standards for
protecting the right to life,
to human dignity and the right not to
be treated or punished in a cruel, inhuman or degrading way. Under
our Constitution these
rights are not qualified by other principles
of justice. There are no such exceptions to the protection of these
rights. Where
the removal of a person to another country is effected
by the state in circumstances that threaten the life or human
dignity
of such person, sections 10 and 11 of the Bill of Rights are
implicated.
45
There can be no doubt that the
removal of Mohamed to the United States of America posed such a
threat. This is perhaps best demonstrated
by reference to the case
of Salim who was extradited from Germany to the United States
subject to an assurance that the death
penalty would not be imposed
on him. This assurance has been implemented by the United States and
Salim is to be tried in proceedings
in which the death sentence will
not be sought.
[54] If the South African
authorities had sought an assurance from the United States against
the death sentence being imposed
on Mohamed before handing him over
to the FBI, there is no reason to believe that such an assurance
would not have been given.
Had that been the case, Mohamed would
have been dealt with in the same way as his alleged co-conspirator
Salim. 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.
[55] It is not only sections 10
and 11 of the Constitution that are implicated in the present case.
According to section 12 (1)(d)
and (e) of our Constitution, everyone
has the right to freedom and security of the person, which includes
the right not to be
tortured in any way and not to be treated or
punished in a cruel, inhuman or degrading way. For the reasons given
in
Makwanyane
, South African law considers a sentence of
death to be cruel, inhuman and degrading punishment.
[56] Article 3 of the European
Convention on Human Rights provides that “no one shall be
subjected to torture or to inhuman
or degrading treatment or
punishment”. In
Soering
v United Kingdom
46
the European Court of Human
Rights held that:
“
[i]t would hardly be compatible with the
underlying values of the Convention . . . were a Contracting State
knowingly to surrender
a fugitive to another State where there were
substantial grounds for believing that he would be in danger of
being subjected
to torture, however heinous the crime allegedly
committed. Extradition in such circumstances, while not explicitly
referred to
in the brief and general wording of Article 3, would
plainly be contrary to the spirit and intendment of the Article, and
in
the Court’s view this inherent obligation not to extradite
also extends to cases in which the fugitive would be faced in
the
receiving State by a real risk of exposure to inhuman or degrading
treatment or punishment proscribed by that Article.”
47
[57]
Soering
’
s
case was concerned with extradition, but similar sentiments were
expressed by the same Court in
Hilal
v United Kingdom
,
48
a case dealing with the
deportation of a Tanzanian citizen from the United Kingdom to
Tanzania, which was held to breach Article
3 of the Convention
because the deportee would face a serious risk of being subjected to
torture or inhuman and degrading treatment
in Tanzania. The Court
there said:
“
The Court recalls at the outset that
Contracting States have the right, as a matter of well-established
international law and
subject to their treaty obligations including
the Convention, to control the entry, residence and expulsion of
aliens. However,
in exercising their right to expel such aliens,
Contracting States must have regard to Article 3 of the Convention
which enshrines
one of the fundamental values of democratic
societies. The expulsion of an alien may give rise to an issue under
this provision
where substantial grounds have been shown for
believing that the person in question, if expelled, would face a
real risk of being
subjected to treatment contrary to Article 3 in
the receiving country. In such circumstances, Article 3 implies an
obligation
not to expel the individual to that country (e.g. the
Ahmed
v Austria
.
. . and
Chahal
v the United Kingdom
judgment[s]).”
49
(Citations
omitted.)
[58] An equally instructive
case is
Chahal v
United Kingdom
50
where the Grand Chamber of the
European Court of Human Rights held that deportation of an
individual to his state of origin where
he would face inhuman or
degrading treatment or punishment would be contrary to the
provisions of Article 3 of the Convention.
The Court said it was:
“
well aware of the immense difficulties
faced by States in modern times in protecting their communities from
terrorist violence.
However, even in these circumstances, the
Convention prohibits in absolute terms torture or inhuman or
degrading treatment or
punishment, irrespective of the victim’s
conduct . . . The prohibition provided by Article 3 against
ill-treatment is equally
absolute in expulsion cases. Thus, whenever
substantial grounds have been shown for believing that an individual
would face a
real risk of being subjected to treatment contrary to
Article 3 if removed to another State, the responsibility of the
Contracting
State to safeguard him or her against such treatment is
engaged in the event of expulsion. In these circumstances, the
activities
of the individual in question, however undesirable or
dangerous, cannot be a material consideration.”
51
(Footnote
omitted.)
[59] These cases are consistent
with the weight that our Constitution gives to the spirit, purport
and objects of the Bill of
Rights
52
and the positive obligation
that it imposes on the state to “protect, promote and fulfil
the rights in the Bill of Rights”.
53
For the South African
government to cooperate with a foreign government to secure the
removal of a fugitive from South Africa
to a country of which the
fugitive is not a national and with which he has no connection other
than that he is to be put on trial
for his life there, is contrary
to the underlying values of our Constitution. It is inconsistent
with the government’s
obligation to protect the right to life
of everyone in South Africa, and it ignores the commitment implicit
in the Constitution
that South Africa will not be party to the
imposition of cruel, inhuman or degrading punishment.
[60] The fact that the
government claims to have deported and not to have extradited
Mohamed is of no relevance. European courts
draw no distinction
between deportation and extradition in the application of Article 3
of the European Convention on Human Rights.
Nor does the Convention
Against Torture and Other Cruel, Inhuman or Degrading Treatment or
Punishment of which South Africa is
a signatory and which it
ratified on 10 December 1998. Article 3(1) of this Convention
provides:
“
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.”
54
It makes no distinction between
expulsion, return or extradition of a person to another state to
face an unacceptable form of
punishment. All are prohibited, and the
right of a state to deport an illegal alien is subject to that
prohibition. That is the
standard that our Constitution demands from
our government in circumstances such as those that existed in the
present case.
[61] The removal of Mohamed to
the United States could not have been effected without the
cooperation of the South African immigration
authorities. They
cooperated well knowing that he would be put on trial in the United
States to face capital charges. That he
should be arrested and put
on trial was clearly a significant and possibly the predominant
motive that determined the course
that was followed. Otherwise, why
instruct the officials at the border to prevent him from leaving
South Africa? And why cooperate
in the process of sending him to the
United States, a country with which he had no connection? They must
also have known that
there was a real risk that he would be
convicted, and that unless an assurance to the contrary were
obtained, he would be sentenced
to death. In doing so they infringed
Mohamed’s rights under the Constitution and acted contrary to
their obligations to
uphold and promote the rights entrenched in the
Bill of Rights.
Consent to deportation or
extradition
[62] A submission strenuously
advanced on behalf of the government was that Mohamed had consented
to his removal to the United
States, whether the removal is properly
to be characterised as a deportation or a disguised extradition. It
is open to doubt
whether a person in Mohamed’s position can
validly consent to being removed to a country in order to face a
criminal charge
where his life is in jeopardy.
55
The authorities ought not to be
encouraged to obtain consents of such a nature.
[63] We did not have the
benefit of full argument on this issue and it would accordingly be
unwise to express a view on it. We
will, without deciding, assume in
favour of the respondents, that a proper consent of such a nature
would be enforceable against
Mohamed. To be enforceable, however, it
would have to be a fully informed consent and one clearly showing
that the applicant
was aware of the exact nature and extent of the
rights being waived in consequence of such consent.
56
[64] An indispensable component
of such consent would be awareness on the part of Mohamed that he
could not lawfully be delivered
by the South African authorities to
the United States without obtaining an undertaking as a condition to
such delivery that if
convicted the death sentence would not be
imposed on him or, if imposed, would not be carried out. Clearly
this duty on the part
of the South African government was important
to Mohamed; and, inevitably, any consent given by him in ignorance
of that duty
and of the literally vital protection it afforded him,
was inchoate. And it must remain such unless and until it is shown
that
the unqualified consent by Mohamed to be taken to New York,
there to be put on trial for his life, was given at a time when he

knew and understood his right to demand of the South African
authorities that they perform their duty to uphold the Constitution.
[65] The onus to prove such
waiver is on the government. Terblanche and Christians allege
Mohamed freely, if not eagerly, chose
to go to New York in the
custody of the FBI agents. Mohamed flatly denied this. So direct and
one-dimensional a dispute of fact
cannot really be resolved on the
affidavits. Nor is it possible to ascertain a clear preponderance of
probabilities in favour
of the government version. Although a show
of bravado fired by religious fervour could explain why Mohamed
would have opted for
New York, it does remain curious that he would
willingly put his life in jeopardy. Nevertheless and notwithstanding
Mohamed’s
denial on oath, we will assume in favour of the
government that its factual version of the consent has been
sufficiently established
on the papers before us. This would still
not assist it, for two reasons.
[66] First, none of the
government deponents even suggests that Mohamed was aware of his
crucial right to demand this protection
against exposure to the
death penalty. Indeed, there is no suggestion that any of the South
African government officials concerned
(Terblanche, Christians or
the NDPP) ever considered this feature, let alone contemplated
informing Mohamed about it. On the
contrary, the impression created
by their affidavits is that they were content to let Mohamed go to
New York once he had made
the election to do so. And if regard is
had to the surrounding circumstances there can be little doubt that
they were actually
keen for him to choose that option: the United
States officials, having run one of the embassy bombers to ground in
Cape Town,
were eager to bring him to book. That their South African
counterparts actively cooperated in this endeavour is evident from

Terblanche’s initial message to his head office that Mohamed
should be detained if he tried to leave the country and the

sentiments expressed by the Minister at the FBI briefing in New
York, followed by the close liaison and teamwork in Cape Town
from
the time Mohamed had been identified from the South African
immigration records to his removal to the United States.
[67] In the second place, there
is the profoundly disturbing circumstance that, on the government’s
own showing, Mohamed
was at no time afforded the benefit of
consulting a lawyer. That Mohamed was in a very serious predicament
is self-evident. Indeed,
for him it was a matter of life and death.
He was a relatively uneducated young man, untrained in the law, a
fugitive in a foreign
land facing numerous grave charges in yet
another foreign country and being interrogated in isolation by two
separate sets of
law-enforcement agents. Terblanche and Christians
were aware of the fundamental right of every detainee to independent
legal
advice and knew it was their duty promptly to inform Mohamed
of this right.
57
They say that upon Mohamed’s
arrest by Terblanche and again when Christians commenced the
interrogation at the holding facility,
he was informed of this right
and waived it. They do not say that the seriousness of the case or
the statutory and constitutional
options were mentioned to him. In
any event, Mohamed denies having been informed of this right and the
statement minuted by Christians
is silent on the point. When Dalvie
raised with Terblanche the possibility of arranging legal
representation for Mohamed, he
was brushed off with the laconic
statement that it would be a waste of money and that Dalvie himself
could not visit Mohamed.
Mohamed was at that stage still being
detained at Cape Town International Airport and competent legal
advice could have made
a crucial difference to the subsequent course
of events. It follows that the election Mohamed allegedly made there
and then to
accompany the FBI agent to the United States must have
been to some extent influenced by his being cut off from legal
advice.
Although we do not pertinently find that there was an
infringement of the constitutional right to consult a lawyer, the
circumstances
support the finding that there was a material
impairment of Mohamed’s ability validly to waive any of his
rights.
[68] We accordingly conclude
that it has not been established that any agreement which Mohamed
might have expressed to his being
delivered to the United States
constitutes a valid consent on which the government can place any
reliance. Its contention in
this regard is accordingly rejected. The
handing over of Mohamed to the United States government agents for
removal by them to
the United States was unlawful.
[69] That is a serious finding.
South Africa is a young democracy still finding its way to full
compliance with the values and
ideals enshrined in the Constitution.
It is therefore important that the state lead by example. This
principle cannot be put
better than in the celebrated words of
Justice Brandeis in
Olmstead et al v United States
:
“
In a government of laws, existence of the
government will be imperilled if it fails to observe the law
scrupulously . . . Government
is the potent, omnipresent teacher.
For good or for ill, it teaches the whole people by its example . .
. If the government becomes
a lawbreaker, it breeds contempt for the
law; it invites every man to become a law unto himself; it invites
anarchy.”
58
The warning was given in a
distant era but remains as cogent as ever. Indeed, for us in this
country, it has a particular relevance:
we saw in the past what
happens when the state bends the law to its own ends and now, in the
new era of constitutionality, we
may be tempted to use questionable
measures in the war against crime. The lesson becomes particularly
important when dealing
with those who aim to destroy the system of
government through law by means of organised violence. The
legitimacy of the constitutional
order is undermined rather than
reinforced when the state acts unlawfully. Here South African
government agents acted inconsistently
with the Constitution in
handing over Mohamed without an assurance that he would not be
executed and in relying on consent obtained
from a person who was
not fully aware of his rights and was moreover deprived of the
benefit of legal advice. They also acted
inconsistently with statute
in unduly accelerating deportation and then despatching Mohamed to a
country to which they were not
authorised to send him.
The relief to be ordered
[70] One of the grounds of
opposition advanced on behalf of the government — and one that
found favour with the High Court
— was that it would be wrong
for a South African court to issue any declaratory order expressing
disapproval of the arrest,
detention, interrogation and transfer of
Mohamed to the FBI agents. He was an alien who had entered South
Africa fraudulently
and had left its jurisdiction. With regard to
the prayer for mandatory relief in the form of an order on the
government to seek
to intercede with the United States authorities
regarding the wrong done to Mohamed, the government’s
opposition to any
form of order was even more forceful. More
specifically it was submitted that any such an order would infringe
the separation
of powers between the judiciary and the executive. In
substance the stance was that Mohamed had been irreversibly
surrendered
to the power of the United States and, in any event, it
was not for this Court, or any other, to give instructions to the
executive.
[71] We disagree. It would not
necessarily be futile for this Court to pronounce on the illegality
of the governmental conduct
in issue in this case. In the first
instance, quite apart from the particular interest of the applicants
in this case, there
are important issues of legality and policy
involved and it is necessary that we say plainly what our
conclusions as to those
issues are. And as far as the particular
interests of Mohamed are concerned, we are satisfied that it is
desirable that our views
to be appropriately conveyed to the trial
court. Not only is the learned judge presiding aware of these
proceedings,
59
but the very reason why they
were instituted by the applicants was said to be that our findings
may have a bearing on the case
over which he is presiding. On the
papers there is a conflict of opinion as between one of the defence
lawyers on the one hand
and a member of the prosecution team on the
other, both of whom have filed affidavits expressing their
respective views as to
the admissibility and/or cogency in the
criminal proceedings of any finding we might make. It is for the
presiding judge to determine
such issues. For that purpose he may or
may not wish to have regard to disputed material such as our
findings. It is therefore
incumbent on this Court to ensure as best
it can that the trial judge is enabled to exercise his judicial
powers in relation
to the proceedings in this Court; and an
appropriate order to that end will be made.
[72] Nor would it necessarily
be out of place for there to be an appropriate order on the relevant
organs of state in South Africa
to do whatever may be within their
power to remedy the wrong here done to Mohamed by their actions, or
to ameliorate at best
the consequential prejudice caused to him. To
stigmatise such an order as a breach of the separation of state
power as between
the executive and the judiciary is to negate a
foundational value of the Republic of South Africa,
60
namely supremacy of the
Constitution and the rule of law. The Bill of Rights, which we find
to have been infringed, is binding
on all organs of state and it is
our constitutional duty
61
to ensure that appropriate
relief is afforded to those who have suffered infringement of their
constitutional rights. On the facts
of the present case, however,
and bearing in mind the advanced state of the proceedings in New
York, we believe that the most
appropriate and effective order is
the one that follows below.
Costs
[73] The applicants would
ordinarily have been entitled to an order for costs in their favour,
not only following their success
in the suit but because they had
raised against the government constitutional issues of general
importance. However, in this
particular case it would not be
appropriate to make such an order. We were told by counsel for the
applicants that pursuant to
an order issued by the judge presiding
in the criminal case, the litigation on behalf of Mohamed in South
Africa was funded by
the United States government. We were also told
that any additional costs that may have been incurred by Dalvie as a
result of
his participation were negligible. An order for costs in
favour of the applicants would therefore effectively oblige the
South
African government to reimburse the United States government,
for whose benefit and at whose instance Mohamed had been handed
over. Accordingly no order as to the costs in this court will be
made. The order in the court below directing the applicants to
pay
the government’s costs in that court must obviously be set
aside.
The order
[74] The following order
issues:
1. Non-compliance by the
applicants with the requirements of the Constitutional Court Rules,
1998 is condoned and leave is granted
to appeal directly to this
Court.
2. The appeal is upheld.
3. The order in the court below
is set aside and in its place the following order is made:
3.1 It is declared that the
handing over of Mohamed at Cape Town on or about 6 October 1999 by
agents of the South African government
to agents of the United
States for removal by the latter to the United States for him to
stand trial in the Federal Court for
the Southern District of New
York on criminal charges in respect of which he could, if convicted,
be sentenced to death, was
unlawful in that:
3.1.1 It infringed Mohamed’s
rights under sections 10, 11 and 12(1)(d) of the Constitution to
human dignity, to life and
not to be treated or punished in a cruel,
inhuman or degrading way, inasmuch as a prior undertaking was not
obtained from the
United States government that the death sentence
would not be imposed on Mohamed or, if imposed, would not be
executed.
3.1.2 In terms of the
provisions of Chapter VI of the Aliens Control Act 96 of 1991 read
with regulation 23 of the Aliens Control
Regulations published under
section 56 of the said Act, there existed at the time of Mohamed’s
removal from the Republic
of South Africa no authority in law to
deport or purportedly to deport or otherwise to remove or cause the
removal of Mohamed
from the Republic to the United States.
3.1.3 In terms of section 52 of
the Aliens Control Act 96 of 1991 the removal of Mohamed from the
Republic could not validly be
effected before the expiry of a period
of three days after he had been declared a prohibited person.
4. There is no order as to
costs.
5. The Director of this Court
is authorised and directed to cause the full text of this judgment
to be drawn to the attention
of and to be delivered to the Director
or equivalent administrative head of the Federal Court for the
Southern District of New
York as a matter of urgency.
Chaskalson
P Madala J Sachs J
Ackermann J Mokgoro J Yacoob J
Goldstone J Ngcobo J Madlanga
AJ
Kriegler J Somyalo AJ
For the applicants /
appellants: MA Albertus SC and A Schippers (instructed by J Ramages
Attorneys, Athlone).
For the respondents: HP Viljoen
SC and N Bawa (instructed by the State Attorney, Cape Town).
For the amici curiae: A Katz
and R Paschke (instructed by the Legal Resources Centre, Cape Town).
1
Rule
11(1) of the Constitutional Court Rules provides that in urgent
matters the President of the Court may dispense with the
forms
provided in the rules and give directions as to time, manner and
procedure of disposal of the matter.
2
Per
Blignault J, Hlophe JP concurring, delivered on 20 April 2001.
3
The
initial application, launched on 14 November 2000, was aimed at
obtaining sight of the official South African documents relating
to
Mohamed’s case and on 15 December 2000 Conradie J issued an
interlocutory order for the production by the respondents
of “all
information in their possession in respect of which lawful privilege
may not be claimed”. A bundle of documents
was produced and a
subsequent order by Hoffman AJ led to extracts of another document
being delivered. The notice of motion was
then amended to claim the
substantive relief that remains in issue before this Court.
4
The
respondents cited are the President as head of the Executive, the
Minister of Justice and Constitutional Development, the
Minister of
Home Affairs, the Minister of Safety and Security, the Minister of
Foreign Affairs, the National Director of Public
Prosecutions and
the Chief Immigration Officer, Cape Town.
5
The
Society for the Abolition of the Death Penalty in South Africa and
the Human Rights Committee Trust.
6
Act
96 of 1991.
7
The
Aliens Control Regulations published under Government Notice R999
(Government Gazette 17254) of 28 June 1996.
8
The
relevant provisions of the Bill of Rights read as follows:
10 Human dignity
Everyone has inherent dignity and the right to have
their dignity respected and protected.
11 Life
Everyone has the right to life.
12 Freedom and security of the person
(1) Everyone has the right to freedom and security of
the person, which includes the right —
(a) not to be deprived of freedom arbitrarily or
without just cause;
(b) not to be detained without trial;
(c) to be free from all forms of violence from either
public or private sources;
(d) not to be tortured in any way; and
(e) not to be treated or punished in a cruel, inhuman
or degrading way.
(2) . . . .
9
Ordinarily,
under rule 18(6) of the rules of this Court, the court of first
instance should be asked to furnish a certificate
as to, among other
things, the prospects of success on appeal and whether it is in the
interests of justice for the matter to
be brought directly to this
Court. Rule 31 of the rules affords this Court a general discretion,
“on sufficient cause shown”
to condone non-compliance
with any of the rules and rule 11(1), as pointed out in n 1 above,
makes provision for directions to
be given in urgent cases.
10
In
terms of section 39(2)(d) of the Act.
11
Contained
in article 6 of the 1951 treaty.
12
Article
19.
13
On
14 and 20 September 1999.
14
Issued
in terms of s 41 of the Act to a prohibited person.
15
Christians
ascribes to him the ubiquitous Muslim expression to that effect:
“inshallah”.
16
It
is interesting to note that this person, who forms part of the
prosecution team in the cases against Mohamed and his co-accused,

was present during lengthy discussions held with Mohamed in the
course of the flight from Cape Town to New York.
17
See,
generally, Shearer
Extradition in
International Law
(The University Press,
Manchester, 1971) 76—7, Botha “Extradition” in
Joubert (ed)
The Law of South Africa
First
Reissue vol 10 part 1 paras 279 and 283, and Botha “Aspects of
extradition and deportation” (1993 — 4)
SA
Yearbook of International Law
163.
18
(1962)
3 All ER 641(CA)
659F—660B and Shearer, id, at 24—6 and
the authorities there cited.
19
Id
at 659I.
20
Id
at 660D.
21
Id
at 660G.
22
[1997] ZACC 4
;
1997
(4) SA 1
(CC);
1997 (6) BCLR 708
(CC).
23
Id
at para 8.
24
Id
at para 9.
25
Section
7(2) of the Constitution provides as follows:
“
The
state must respect, protect, promote and fulfil the rights in the
Bill of Rights.”
In terms of s 8(1) of the Constitution the Bill of
Rights “binds the legislature, the executive, the judiciary
and all organs
of state.”
26
Above
n 8.
27
[1995] ZACC 3
;
1995
(3) SA 391
(CC);
1995 (6) BCLR 665
(CC).
28
The
question whether, in the light of the decision in
Makwanyane
,
an exception should be made to the right to life to allow for the
death sentence to be passed in serious cases, was thoroughly
debated
in the course of the deliberations of the Constitutional Assembly,
e.g. during the second reading debate on 7 May 1996.
Among other
matters, the question of a qualification to the right to life to
allow for the death sentence was expressly raised
and debated.
Ultimately a decision was taken that this should not be done.
Although unanimity could not be reached on this particular
question,
the Constitution was adopted by an overwhelming majority of the
members of the Constitutional Assembly.
29
Section
1(a) of the Constitution provides as follows:
“
The Republic of South Africa
is one, sovereign, democratic state founded on the following values:
Human
dignity, the achievement of equality and the advancement of human
rights and freedoms.”
30
In
1993 the Security Council unanimously adopted the statute for the
International Criminal tribunal for the former Yugoslavia

(Resolution 827 (1993)). In paragraph 1 of the resolution it
approved the report of the Secretary-General of 3 May 1993 in which

he recommended in paragraph 112 that “[t]he International
Tribunal should not be empowered to impose the death penalty”.

That is reflected in Article 24 which provides that “[t]he
penalty imposed by the Trial Chamber shall be limited to
imprisonment”.
See Morris and Scharf
An
Insider’s Guide to the International Criminal Tribunal for the
Former Yugoslavia
Vol 1 (Transnational
Publishers Inc, New York, 1995) at 274 and especially fn 713. Even
in the face of the terrible genocide in
Rwanda where over 500 000
people were murdered, the Security Council was not prepared to
compromise on the inclusion of the death
penalty. The statute was
adopted by the Security Council with one dissent (Rwanda) and one
abstention (China). In terms of Article
23 the penalty which may be
imposed by a trial chamber is limited to imprisonment. In its
explanation of vote on Resolution 955,
New Zealand stated:
“
For over three decades the
United Nations has been trying progressively to eliminate the death
penalty. It would be entirely unacceptable
— and a dreadful
step backwards — to introduce it here.”
Morris and Scharf
The International Criminal
Tribunal for Rwanda
Vol 1 (Transnational Publishers Inc, New
York, 1998) at 71—2. During the Rome Diplomatic Conference
which drafted and adopted
the Statute for the International Criminal
Court there was much long debate on capital punishment. In the end
it was agreed to
exclude it as a competent sentence. In all 139
states signed the ICC Statute and 31, including South Africa, have
ratified or
acceded to the treaty.
31
Cf
Mackeson v Minister of Information,
Immigration and Tourism and Another
1980 (1)
SA 747
(ZR) at 753—7.
32
United
States v Burns
,
2001 SCC 7
, as yet
unreported.
33
(1991)
6 CRR (2d) 193.
34
(1991)
6 CRR (2d) 252.
35
At
paras 131—2.
36
At
para 65.
37
Section
1 provides that “The
Canadian Charter
of Rights and Freedoms
guarantees the rights
and freedoms set out in it subject only to such reasonable limits
prescribed by law as can be demonstrably
justified in a free and
democratic society”.
38
Section
11.
39
Factors
that have to be taken into account in terms of the section are:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its
purpose; and
(e) less restrictive means to achieve the purpose.
40
Above
para 38.
41
Above
n 27 at para 144.
42
[1996]
1 F.C 547.
43
Above
n 18.
44
Above
n 34 at 203.
45
Albeit
subject to possible limitation under s 36.
46
[1989] ECHR 14
;
(1989)
11 EHRR 439.
47
Id
at para 88.
48
Application
no. 45276/99, 6 March 2001.
49
Id
at para 59.
50
[1996] ECHR 54
;
(1996)
23 EHRR 413.
51
Id
at para 79—80.
52
Section
39(2).
53
Section
7(2).
54
“
Torture”
is defined in Article 1(1) as including “any act by which
severe pain or suffering, whether physical or mental,
is
intentionally inflicted on a person for such purposes as . . .
punishing him for an act he or a third person has committed
or is
suspected of having committed . . . ”, while providing that
“torture” does not include “pain or
suffering
arising only from, inherent in or incidental to lawful sanctions”.
55
As
to waiver generally, see
South
African Co-operative Citrus Exchange Ltd v Director-General: Trade
and Industry and Another
[1997] ZASCA 6
;
1997
(3) SA 236
(SCA) at 242G—H and 244D—E;
Ritch
and Bhyat v Union Government (Minister of Justice)
1912 AD 719
at 734— 5;
Reckitt
and Colman (New Zealand) Ltd v Taxation Board of Review and Another
[1966] NZLR 1032
(CA) at 1042—3. In
S
v Shaba and Another
1998
(2) BCLR 220
(T) at 221H—I, the court held that the private
law doctrine of waiver is not applicable to inalienable fundamental
rights.
An individual may choose not to exercise a constitutionally
protected right, but is always free to change his or her mind
without
penalty. De Waal et al
The
Bill of Rights Handbook
4
ed (Juta, Cape Town, 2001) at 42—3, while suggesting t hat
many “freedom rights” may be waived, are of the
view
that rights to human dignity, life, and the right not to be
discriminated against cannot be waived. In a similar vein, the

German Federal Administrative Tribunal’s
Peep
Show
decision
BVerwGe 64, 274 (1981) [English translation by Michalowski and Woods
German
Constitutional Law – The Protection of Civil Liberties
(Ashgate/Dartmouth, Aldershot, 1999)
at 105] states that “[h]uman dignity is an objective,
indisposable value, the respect
of which the individual cannot waive
validly.” In
Basheshar
Nath v The Commissioner of Income-Tax, Delhi & Rajasthan &
Another
[1959]
Supp
1 SCR 528
, Das CJ of the Indian Supreme Court held that
equality rights (Article 14) involve important public policy
considerations and
can therefore not be waived (at 550—3). In
concurring opinions, Bhagwati (at 556—65) and Subba Roa JJ (at
606—22)
stated that
all
fundamental constitutional rights
were instituted for public policy reasons. In
Olga
Tellis and Others v Bombay Municipal Corporation
[1986] 73 AIR 180
(SC) at paras
27—30, the court held that litigants can never be estopped
from claiming any fundamental right. See also
Behram
Khurshed Pesikaka v The State of Bombay
[1955]
1 SCR 613
at 653—4. Seervai
Constitutional
Law of India – A Critical Commentary
Vol
1, 4 ed (Universal Book Traders, Delhi, 1999), paras 8.41—61,
takes a narrower view. In his opinion, most fundamental
rights,
including equality, “are conferred primarily for the benefit
of individuals, and can, therefore, be waived”.
There are
some, like the prohibition of “untouchability” (Article
17), that have important public policy ramifications
and cannot be
waived. In
R v Tran
[1995] 92 CCC (3d) 218 at 254, the
Canadian Supreme Court held that “there will be situations
where [a s. 14 Charter] right
simply
cannot
,
in the greater public interest, be waived”. In
R
v Richard
[1997]
110 CCC 3d 385
at 396, the court held that while certain
constitutional rights may in some circumstances be waived, “the
manner in which
such a waiver may be made, the extent to which such
rights can be waived and the effect of a waiver may vary with the
nature
and scope of the right in question”. The United States
approach, by contrast, is to allow almost any right, whether or not

constitutionally based, to be irretrievably waived by an individual;
see
Peretz v US
501
US 923
, 936 (1991): “The most basic rights of criminal
defendants are . . . subject to waiver”and
US
v Mezzanatto
[1995] USSC 7
;
513
US 196
, 203 (1995).
56
Hepner
v Roodepoort-Maraisburg Town Council
1962
(4) SA 772
(A) at 778E—F;
Laws v
Rutherford
1924 AD 261
at 263. See also
S
v Gasa & Others
1998 (1) SACR 446
(D) at
448B and
S v Pienaar
2000
(7) BCLR 800
(NC) at 805C. The Canadian Supreme Court, in the
context of the right to trial by jury, stated in
Korponey
v Attorney-General of Canada
[1982] 65 CCC
(2d) 65 at 74 (affirmed by
R v Lee
[1990] 52 CCC (3d) 289 at 306—9), that any waiver
“is dependent upon it being
clear and
unequivocal
”
and must be made “
with
full knowledge of the rights the procedure was enacted to protect
and of the effect the waiver will have on those rights
in the
process
”
(emphasis in the original).
See also
Clarkson v The Queen
[1986] 25 CCC (3d) 207 at 217—9,
R
v Evans
[1991] 63 CCC (3d) 289 at 307,
Mills
v The Queen
[1986] 26 CCC (3d) 481 at 544—6,
and
R v Morin
[1992]
71 CCC (3d) 1 at 15.
57
In
terms of s 35(2)(b) of the Constitution “[e]veryone who is
detained . . . has the right . . . to choose, and to consult
with, a
legal practitioner, and to be informed of this right promptly”.
The principle underlying this constitutional provision
is, of
course, recognised in open and democratic societies. In the present
case it would suffice to refer to
Miranda v
Arizona
[1966] USSC 130
;
384 US 436
(1966) and
Escobedo
v Illinois
378 US 478
(1964).
58
[1928] USSC 133
;
277
US 438
, 485 (1928).
59
Indeed,
Judge Sand specially authorised the expenditure of funds to enable
Mohamed’s court-appointed defence team to pursue
his interests
in the South African courts, urging that such proceedings be
concluded with all due expedition.
60
Section
(1)(c) of the Constitution.
61
Under
s 7(2) read with ss 38and 172(1)(a) of the Constitution.