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[2004] ZACC 5
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Kaunda and Others v President of the Republic of South Africa (CCT 23/04) [2004] ZACC 5; 2005 (4) SA 235 (CC); 2004 (10) BCLR 1009 (CC); 2005 (1) SACR 111 (CC) (4 August 2004)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 23/04
SAMUEL
KAUNDA AND OTHERS
…......................................................
Applicants
versus
THE
PRESIDENT OF THE REPUBLIC OF
SOUTH
AFRICA
…............................................................................
First
Respondent
THE
MINISTER OF JUSTICE AND
CONSTITUTIONAL
DEVELOPMENT
…....................................
Second
Respondent
THE
MINISTER OF SAFETY AND SECURITY
…........................
Third
Respondent
THE
MINISTER OF INTELLIGENCE
…......................................
Fourth
Respondent
THE
MINISTER OF HOME AFFAIRS
….........................................
Fifth
Respondent
THE
MINISTER OF FOREIGN AFFAIRS
…..................................
Sixth
Respondent
THE
NATIONAL DIRECTOR OF PUBLIC
PROSECUTIONS
..........................................................................
Seventh
Respondent
Together
with
SOCIETY
FOR THE ABOLITION OF THE
DEATH
PENALTY IN SOUTH AFRICA
…........................................
Amicus
Curiae
Heard on
: 19 and 20 July 2004
Decided
on : 4 August 2004
JUDGMENT
CHASKALSON
CJ:
The applicants in this matter are 69 South African citizens
presently held in Zimbabwe on a variety of charges.
1
The first six respondents are the President of the Republic of
South Africa and various Cabinet Ministers who are cited as

representatives of the South African government (the government).
The National Director of Public Prosecutions is cited as
the
seventh respondent.
The applicants were arrested in Zimbabwe on 7 March 2004. On 9
March 2004, a group of 15 men were arrested in Malabo, the capital

of Equatorial Guinea, and accused of being mercenaries and plotting
a coup against the President of Equatorial Guinea. The
majority of
the detainees are South African nationals. The applicants fear that
they may be extradited from Zimbabwe to Equatorial
Guinea and put
on trial with those who have been arrested there. They contend that
if this happens they will not get a fair
trial and, if convicted,
that they stand the risk of being sentenced to death.
The applicants initially approached the High Court in Pretoria (the
High Court) seeking orders aimed at compelling the government
to
make certain representations on their behalf to the governments of
Zimbabwe and Equatorial Guinea, and to take steps to
ensure that
their rights to dignity, freedom and security of the person and
fair conditions of detention and trial are at all
times respected
and protected in Zimbabwe and Equatorial Guinea.
The substantive relief claimed was in the following terms:
“
2.
Directing and ordering the Government of the Republic of South
Africa (the Government) to take all reasonable and necessary
steps
as a matter of extreme urgency, to seek the release and/or
extradition of the applicants from the Governments of Zimbabwe

and/or Equatorial Guinea, as the case may be, to South Africa.
3. Declaring that the
Government is, as a matter of law, entitled to request the release
and/or extradition of the applicants
from the Governments of
Zimbabwe and/or Equatorial Guinea, as the case may be, to South
Africa.
4. Directing and ordering the
Government to seek an assurance as a matter of extreme urgency from
the Zimbabwean Government that
the applicants will not be released
or extradited to Equatorial Guinea.
5. Directing and ordering the
Government to seek assurance as a matter of extreme urgency from the
Zimbabwean and Equatorial Guinean
Governments, as the case may be,
to not impose the death penalty on the applicants.
6. Directing and ordering the
Government to ensure as far as is reasonably possible, that the
dignity of the applicants as guaranteed
in section 9 of the
Constitution of South Africa (the Constitution) are at all times
respected and protected in Zimbabwe or Equatorial
Guinea, as the
case may be.
7. Directing and ordering the
Government to ensure as far as is reasonably possible, that the
applicants’ right to freedom
and security of person including
the rights not to be subjected to torture, or cruel, inhuman or
degrading treatment or punishment,
as guaranteed in section 12 of
the Constitution, are at all times respected and protected in
Zimbabwe or Equatorial Guinea, as
the case may be.
8. Directing and ordering the
Government to ensure as far as is reasonably possible, that the
rights of the applicants to fair
detention and fair trial as
guaranteed in section 35 of the Constitution are at all times
respected and protected in Zimbabwe
or Equatorial Guinea, as the
case may be.
9. Directing and ordering the
Government to, through the office of the second respondent, report
in writing to the Registrar of
this Honourable Court on a weekly
basis as to the issues set out above where applicable.”
The application which was heard in the High Court by Ngoepe JP was
dismissed. The Judge President delivered his judgment on
9 June
2004. On 21 June 2004 the applicants lodged an urgent application
with the registrar of this Court for leave to appeal
directly to it
against the decision of the High Court. On 29 June the government
lodged an affidavit opposing the application.
This Court was then
in recess and not due to convene again until 15 August. Because of
the seriousness of the allegations made
it was decided to convene
the Court during the recess. On 30 June directions were given that
the application for leave to appeal
would be heard on 19 and 20
July 2004. The parties were put on terms to lodge their arguments
expeditiously and to deal with
the merits of the application to
ensure that if leave to appeal was granted the matter could be
disposed of without hearing
further argument.
The Society for the Abolition of the Death Penalty in South Africa
was admitted as an amicus curiae in the High Court proceedings
and
provided argument supporting the applicants’ application. It
has sought leave to participate as an amicus in the
application for
leave to appeal. That was granted and we have had the benefit of
written and oral argument from the amicus
as well as the applicants
and the government.
The application to the High Court
The proceedings against the government were commenced in the High
Court over two months ago as a matter of urgency. The application

was foreshadowed by a newspaper report published on 5 May 2004
saying that the applicants were expected to lodge an application
in
the High Court to force the government to step in. The report which
is attached to the applicants’ founding affidavit
is based
largely on statements attributed to the applicants’ attorney
and counsel in this matter. No demand was, however,
made on the
government at that time. Some twelve days later, on 17 May 2004,
the government was given twenty four hours’
notice to comply
with the demands made in a letter from the applicants’
attorney. The demands made were those which are
now the claims
referred to above. Their application to the High Court for this
relief was lodged the following day with an
affidavit of over 100
pages signed by the applicants’ attorney, to which were
attached 34 annexures running to over 200
pages.
There is no justification for the peremptory manner in which the
proceedings were commenced, nor satisfactory explanation for
the
failure to make the demand at the time the media was informed that
court proceedings were to be launched. It must have
been obvious to
the applicants’ attorneys that the demands could not
reasonably have been responded to within twenty
four hours. Not
surprisingly there was no response and the following day the
application was lodged requiring the government
to respond within a
week. The answering affidavits draw attention to the short time
within which the government has had to
deal with the allegations
made in the founding affidavit. They place most of the material
allegations in issue but do so at
times baldly, and without
providing an account of all that they intend to do in the
circumstances of the case. A consequence
of the way that the papers
have been drafted by the applicants and the respondents is that
some of the issues that have been
the subject of argument were not
clearly formulated in the founding affidavit or the government’s
answer. The picture
which emerges from the record and on which the
application must be decided is dealt with more fully when the
various claims
are addressed. The background is as follows.
The arrest of the applicants in Zimbabwe
The applicants say that they were employed to act as security
guards in the Democratic Republic of the Congo (DRC) for a company

which conducts mining operations there. Their services were
required because mines in the DRC are subject to attacks by rebel

armies and need protection. The rebel armies are equipped with
modern weapons and the security guards need weapons suitable
to
enable them to resist such attacks. The applicants allege that a
company known as Military Technical Services (MTS), which
is a
licensed arms dealer in South Africa, entered into an agreement
earlier this year with a state owned company in Zimbabwe
called
Zimbabwe Defence Industries (ZDI) to supply the arms that would be
required for this purpose.
On 7 March 2004 the applicants boarded a plane at Wonderboom
Airport in South Africa from where they allege they were to

commence their journey to the DRC to fulfil their contract to act
as security guards. The plane took off and landed at the Polokwane

International Airport where the applicants’ papers were
cleared. The plane took off again and finally landed at Harare

International Airport. According to the applicants, they were to
refuel at Harare, pick up cargo there and then fly to Burundi,
with
their final destination being the DRC. They were arrested at Harare
airport before the cargo had been loaded.
According to the charges they face in Harare the cargo was to
consist of
“
61 AK
rifles – 150 offensive hand grenades
45 000 AK ammunition
20 PKM Light machine guns
30 000 PKM ammunition
100 RPG 7 anti tank launchers
2 X 60mm mortar tubes
5080 X 60mm mortar bombs
150 offensive hand grenades
20 icarus flairs
500 boxes 7.62 X 54mm
ammunition
1 000 boxes 7.62 X 39mm
ammunition
1 000 rounds RPG anti tank H.E
ammunition
50 PRM machine guns.”
After the applicants had been arrested they were moved to Chikurubi
Maximum Security Prison (Chikurubi Prison). They make serious

allegations concerning the conditions in which they have been held
since then and the difficulties they have had in instructing
their
attorneys and preparing for their trial in Zimbabwe. These
allegations will be dealt with more fully later. For the moment
it
is sufficient to say that they face the following charges in
Zimbabwe:
“
Contravening
section 13(1) of the Public Order and Security Act –
Count 1 – Conspiracy to
possess dangerous weapons;
Count 2 – Attempt to
possess dangerous weapons.
Contravening section 4(2)(b) of
the Firearms Act –
Count 1 – Conspiracy to
purchase firearms without a firearms certificate;
Contravening section 4(4)(a) of
the Firearms Act –
Count 2 – Conspiracy to
purchase ammunition without a firearms certificate.
Contravening section
36(1)(a)(i) and section 36(1)(c) or alternatively section 36(1)(e)
of the Immigration Act – enter or
assist any person to enter,
remain or depart from Zimbabwe and making a false statement.
Contravening section 89(2)(b)
of Statutory Instrument 79/88 of Aviation (air navigation)
Regulations – make a false statement
or declaration to an
official of the Civil Aviation Authority of Zimbabwe.”
The applicants’ trial in Zimbabwe was due to commence on the
first day of the hearing of this application. It was, however,

postponed for two days to enable the counsel and attorneys who
represent them in this application to appear on their behalf in

Zimbabwe.
The allegations made by the applicants in the High Court
proceedings
The founding affidavit on which the application is based was made
by the applicants’ attorney, Mr Griebenow (Griebenow).
He
explains in great detail the difficulty he has experienced in
consulting with the applicants in Chikurubi Prison and the

practical difficulty he would have had in attempting to get them to
make the affidavit. The government disputed various allegations

made by Griebenow, but did not make an issue of the fact that there
were no affidavits from the applicants confirming what
he said. The
High Court accepted Griebenow’s explanation for making the
founding affidavit himself. I will therefore
deal with the matter
as if the applicants had confirmed the allegations made by
Griebenow.
The applicants have nine separate claims that are set out in their
notice of motion. These are claims of extraordinary breadth.
I will
deal with each of the claims in turn. But before doing so it is
necessary to deal with two procedural issues raised
during
argument.
Is the application urgent and are the applicants entitled to
appeal directly to this Court?
The procedural issues are related and can be dealt with together.
They are whether the application for leave to appeal is
sufficiently urgent to warrant the failure to comply with the
normal rules of procedure and to entitle the applicants to bypass

the Supreme Court of Appeal or the Full Bench of the High Court,
and appeal directly to this Court.
This Court has held on various occasions that the granting of leave
to appeal directly to it depends on various factors:
“
Relevant
factors to be considered in such cases will, on one hand, be the
importance of the constitutional issues, the saving
in time and
costs that might result if a direct appeal is allowed, the urgency,
if any, in having a final determination of the
matters in issue and
the prospects of success, and, on the other hand, the disadvantages
to the management of the Court’s
roll and to the ultimate
decision of the case if the SCA is bypassed.”
2
The applicants primarily aim to avoid being extradited to
Equatorial Guinea and being tried in Zimbabwe or Equatorial Guinea.

To that end their first claim is to require the South African
government to take steps to have them extradited to South Africa
so
that any trial they may have to face can be conducted here. The
other claims are directed to their conditions of detention,
and to
trial procedures should they be put on trial in Zimbabwe or
Equatorial Guinea.
If the applicants are extradited to Equatorial Guinea or put on
trial in Zimbabwe, the relief claimed by them seeking to prevent

this will become academic. The claims relating to their conditions
of detention are immediate and if they are entitled to the
relief
claimed, are pressing. It is desirable that finality be reached on
these issues without delay.
The constitutional issues raise the question whether the
Constitution binds the state to take steps to protect the
applicants
in relation to the complaints they have concerning their
conditions of detention in Zimbabwe and the prosecution they face

there, as well as the possibility of their being extradited to
Equatorial Guinea to face charges which could result, if they were

to be convicted, in their being sentenced to death. These issues
involve the reach of the Constitution, and the relationship
between
the judiciary and the executive and the separation of powers
between them. They are issues of great moment, and if
their claims
have substance, of great importance to the applicants.
The merits of the constitutional claim are relevant to the
application for leave to appeal directly to this Court and the
alleged urgency of the matter. The procedure followed by this Court
in setting the application down for hearing and requiring
the
parties to deal with the merits enables the Court to consider the
merits of the claim and, if so advised, to bring this
dispute to
finality. It also avoids a situation in which delays may result in
the relief claimed becoming academic.
A theme that runs through all the claims is a demand that the
government should seek assurances from foreign governments

concerning prosecutions or contemplated prosecutions in those
countries. The applicants assert that they have rights under the

Constitution entitling them to make such demands, that the
government has failed to comply with their demands and that in
failing to do so it has breached their constitutional rights. The
relief they claim is in effect a mandamus ordering the government

to take action at a diplomatic level to ensure that the rights they
claim to have under the South African Constitution are
respected by
the two foreign governments.
The issues raised by the applicants and the amicus curiae involve,
on the one hand, the relationship at an international level
between
South Africa and foreign states, in this case Zimbabwe and
Equatorial Guinea, and on the other, the nature and extent
of its
obligations to citizens beyond its borders. To answer the questions
raised it is necessary to deal both with international
law and
domestic law. As the setting is international, I begin with
international law.
International law
Section 232 of the Constitution provides that:
“
Customary
international law is law in the Republic unless it is inconsistent
with the Constitution or an Act of Parliament.”
Traditionally, international law has acknowledged that states have
the right to protect their nationals beyond their borders
but are
under no obligation to do so. Counsel for the government, citing the
Barcelona Traction
case,
3
relied on this principle to support the government’s
contention that the applicants’ claims are misconceived. They

referred to the following passages from the judgment of the
International Court of Justice (ICJ) in that case:
“
The
Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection
by
whatever means and to whatever extent it thinks fit, for it is its
own right that the State is asserting. Should the natural
or legal
persons on whose behalf it is acting consider that their rights are
not adequately protected, they have no remedy in
international law.
All they can do is resort to municipal law, if means are available,
with a view to furthering their cause
or obtaining redress . . .
The State must be viewed as the
sole judge to decide whether its protection will be granted, to what
extent it is granted, and
when it will cease. It retains in this
respect a discretionary power the exercise of which may be
determined by considerations
of a political or other nature,
unrelated to the particular case. Since the claim of the State is
not identical with that of
the individual or corporate person whose
cause is espoused, the State enjoys complete freedom of action.
Whatever the reasons
for any change of attitude, the fact cannot in
itself constitute a justification for the exercise of diplomatic
protection by
another government, unless there is some independent
and otherwise valid ground for that.”
4
Their argument comes down to this. The applicants’ remedy is
to approach the government for assistance and not the courts.
If
this is done the government will consider their requests. It is,
however, the sole judge of what should be done in any given
case
and when and in what manner assistance that is given should be
provided.
The nature and scope of diplomatic protection has been the subject
of investigations by the International Law Commission. It
was
requested in 1996 by the General Assembly of the United Nations to
undertake this task. Special Rapporteurs and working
groups were
involved in the investigations the outcome of which is referred to
in reports of the International Law Commission.
The report dealing
with issues relevant to the present matter is the report published
in 2000 (the ILC report). This report
contains summaries by the
Special Rapporteur, Professor Dugard, of the relevant debates.
5
The term diplomatic protection is not a precise term of art. It is
defined in the Special Rapporteur’s report as
“
action
taken by a State against another State in respect of an injury to
the person or property of a national caused by an internationally

wrongful act or omission attributable to the latter State.”
6
It is also used by some commentators to refer to
“
preventing
some threatened injury in violation of international law, or of
obtaining redress for such injuries after they have
been
sustained.”
7
It appears from the ILC report, however, that there are differences
on this and that some commentators take the view that diplomatic

protection applies only to actions taken to secure redress for
injuries actually caused.
8
According to the Special Rapporteur’s report, diplomatic
protection includes, in a broad sense, “consular action,

negotiation, mediation, judicial and arbitral proceedings,
reprisals, retorsion, severance of diplomatic relations, [and]
economic pressures”.
9
Some authorities distinguish between diplomatic action taken by a
state to secure redress for an injury to a national, and
judicial
proceedings taken to that end. The distinction is not relevant for
the purposes of this case.
It had been suggested that the traditional approach to diplomatic
protection, such as that set out in the
Barcelona Traction
case,
10
should be developed to recognise that in certain circumstances
where injury is the result of a grave breach of a jus cogens
norm,
the state whose national has been injured, should have a legal duty
to exercise diplomatic protection on behalf of the
injured person.
As a corollary to that, states would be obliged to make provision
in their municipal law for the enforcement
of this right before a
competent court or other independent national authority.
It appears from the ILC report that although there was some support
for this development, and some recent national constitutions
made
provision for such an obligation, presently this is not the general
practice of states. Currently the prevailing view
is that
diplomatic protection is not recognised by international law as a
human right and cannot be enforced as such. To do
so may give rise
to more problems than it would solve. Diplomatic protection remains
the prerogative of the state to be exercised
at its discretion. It
must be accepted, therefore, that the applicants cannot base their
claims on customary international
law. No contention to the
contrary was addressed to us in argument.
South African law
Against this background of international law and practice I turn to
consider the question whether according to our municipal
law the
applicants have a right to diplomatic protection from the state,
and can require it to come to their assistance in
Zimbabwe or
Equatorial Guinea if they are extradited to that country.
Counsel for the applicants contended that the applicants’
rights to dignity, life, freedom and security of the person,

including the right not to be treated or punished in a cruel,
inhuman or degrading way, and also the right to a fair trial

entrenched in sections 10, 11, 12 and 35 of the Constitution, are
being infringed in Zimbabwe and are likely to be infringed
if they
are extradited to Equatorial Guinea. Relying on section 7(2) of the
Constitution, which requires the state to “respect,
protect,
promote and fulfil the rights in the Bill of Rights”, he
contended that the state is obliged to protect these
rights of the
applicants, and the only way it can do so in the circumstances of
this case is to provide them with diplomatic
protection. Counsel
for the amicus adopted a similar but more nuanced approach
directing himself to the issue of capital punishment
and the
state’s duties to its citizens if that risk arises in a
foreign country.
The argument based on section 7(2) is built on the proposition that
the state has a positive obligation to comply with its
provisions.
11
I accept that this is so. But that does not mean that the rights
nationals have under our Constitution attach to them when
they are
outside of South Africa,
12
or that the state has an obligation under section 7(2) to “respect,
protect, promote, and fulfil” the rights in
the Bill of
Rights which extends beyond its borders. Those are different issues
which depend, in the first instance, on whether
the Constitution
can be construed as having extraterritorial effect.
Section 233 of the Constitution provides:
“
When
interpreting any legislation, every court must prefer any reasonable
interpretation of the legislation that is consistent
with
international law over any alternative interpretation that is
inconsistent with international law.”
This must apply equally to the provisions of the Bill of Rights and
the Constitution as a whole. Consistently with this, section

39(1)(b) of the Constitution requires courts, when interpreting the
Bill of Rights, to consider international law.
A right to diplomatic protection is not referred to in the
Universal Declaration of Human Rights, nor is it a right contained

in any international agreement of which I am aware, including the
international human rights’ treaties to which South
Africa is
a party, such as the African Charter on Human and Peoples’
Rights
13
or the International Covenant on Civil and Political Rights.
14
Our Constitution shows respect for international law, and although
it includes rights which go beyond those recognised by
international law and major human rights instruments, when it does
so, it spells out the rights expressly.
As Ackermann J pointed out in
Bernstein and Others v Bester and
Others NNO
,
15
“[t]he internal evidence of the Constitution itself suggests
that the drafters were well informed regarding provisions
in
international, regional and domestic human and fundamental
rights”.
16
The Bill of Rights is extensive and covers conventional and less
conventional rights in detail. A right to diplomatic protection
is
a most unusual right, which one would expect to be spelt out
expressly rather than being left to implication.
17
Extraterritoriality: the constitutional text
The starting point of the enquiry into extraterritoriality is to
determine the ambit of the rights that are the subject matter
of
section 7(2). To begin with two observations are called for. First,
the Constitution provides the framework for the governance
of South
Africa. In that respect it is territorially bound and has no
application beyond our borders. Secondly, the rights
in the Bill of
Rights on which reliance is placed for this part of the argument
are rights that vest in everyone. Foreigners
are entitled to
require the South African state to respect, protect and promote
their rights to life and dignity and not to
be treated or punished
in a cruel, inhuman or degrading way while they are in South
Africa. Clearly, they lose the benefit
of that protection when they
move beyond our borders. Does section 7(2) contemplate that the
state’s obligation to South
Africans under that section is
more extensive than its obligation to foreigners, and attaches to
them when they are in foreign
countries?
Section 7(1) refers to the Bill of Rights as the
“
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.”
The bearers of the rights are people in South Africa. Nothing
suggests that it is to have general application, beyond our borders.
Extraterritoriality: international law
It is a general rule of international law that the laws of a state
ordinarily apply only within its own territory.
18
It is recognised, however, that a state is also entitled, in
certain circumstances, to make laws binding on nationals wherever

they may be. This can give rise to a tension if laws binding on
nationals conflict with laws of a foreign sovereign state in
which
the national is. As Dugard points out,
19
sovereignty empowers a state to exercise the functions of a state
within a particular territory to the exclusion of all other

states.
20
In most instances, the exercise of jurisdiction beyond a state’s
territorial limits would under international law constitute
an
interference with the exclusive territorial jurisdiction of another
state. In
The Case of the S.S. Lotus,
21
the Permanent Court of International Justice described this
principle as follows:
“
Now
the first and foremost restriction imposed by international law upon
a State is that – failing the existence of a permissive
rule
to the contrary – it may not exercise its power in any form in
the territory of another State. In this sense jurisdiction
is
certainly territorial; it cannot be exercised by a State outside its
territory except by virtue of a permissive rule derived
from
international custom or from a convention . . . all that
can be required of a State is that it should not overstep
the limits
which international law places upon its jurisdiction; within these
limits, its title to exercise jurisdiction rests
in its
sovereignty.”
22
As Brownlie
23
and Shaw
24
point out, the passage of which this forms a part has been
criticised by a substantial number of authorities. The criticism

emanates from a reading of the passage which appears to regard
states as possessing very wide powers of jurisdiction which
could
only be restricted by proof of a rule of international law
prohibiting the action concerned. As Shaw notes, however,
two later
judgments of the ICJ indicate that “the emphasis lies the
other way around.”
25
It is not necessary to enter this controversy. What seems to be
clear is that when the application of a national law would
infringe
the sovereignty of another state, that would ordinarily be
inconsistent with and not sanctioned by international law.
In the case of
R v Cook
,
26
the majority of the Supreme Court of Canada endorsed this
understanding of the international law position holding that “the

principle of the sovereign equality of states generally prohibits
extraterritorial application of domestic law”.
27
In dealing with the application of the Charter beyond the borders
of Canada, they said
“
on
the jurisdictional basis of nationality, the Charter applies to the
actions of Canadian law enforcement authorities on foreign
territory
(which satisfies s. 32(1)), provided that the application of Charter
standards would not interfere with the sovereign
authority of the
foreign state.”
28
I agree with this approach which, on issues relevant to the
application of the Bill of Rights to foreign states and their
functionaries, does not seem to me to be inconsistent with the
views of the other judges in that case. L’Heureux-Dube
and
McLachlin JJ expressed themselves as follows:
“
[F]or
the protection of the Charter to apply, the action alleged to have
violated the claimant’s Charter rights must have
been carried
out by one of the governmental actors enumerated in s. 32. Under no
circumstances can the actions of officials of
another jurisdiction,
acting outside Canada, be considered to violate the Charter.
Officials of other jurisdictions will not
be considered agents of
Canadian authorities. This emerges from the need to respect the
sovereignty and laws of countries where
Canadian officials work, by
not expecting foreign officials to comply with Canadian law or
modify their procedures to respect
Canadian law.”
29
Bastarache and Gonthier JJ said:
“
By
its terms, s. 32(1) dictates that the Charter applies to the
Canadian police by virtue of their identity as part of the Canadian

government. By those same terms, however, the Charter may not be
applied to a person who is neither within the authority of the

various Canadian legislatures, nor a Canadian official.”
30
There may be special circumstances where the laws of a state are
applicable to nationals beyond the state’s borders,
but only
if the application of the law does not interfere with the
sovereignty of other states.
31
For South Africa to assume an obligation that entitles its
nationals to demand, and obliges it to take action to ensure, that

laws and conduct of a foreign state and its officials meet not only
the requirements of the foreign state’s own laws,
but also
the rights that our nationals have under our Constitution, would be
inconsistent with the principle of state sovereignty.
Section 7(2)
should not be construed as imposing a positive obligation on
government to do this.
During argument hypothetical questions were raised relating to
South African officials abroad, to South African companies doing

business beyond our borders, to the government itself engaging in
commercial ventures through state owned companies with bases
in
foreign countries, and to what the state’s obligations might
be in such circumstances. There is a difference between
an
extraterritorial infringement of a constitutional right by an organ
of state bound under section 8(1) of the Constitution,
or by
persons bound under section 8(2) of the Constitution, in
circumstances which do not infringe the sovereignty of a foreign

state, and an obligation on our government to take action in a
foreign state that interferes directly or indirectly with the

sovereignty of that state. Claims that fall in the former category
raise problems with which it is not necessary to deal now.
32
They may, however, be justiciable in our courts, and nothing in
this judgment should be construed as excluding that possibility.
The decision in Mohamed and Another v President of the Republic
of South Africa and Others
The applicants contend that because the state provided intelligence
to Zimbabwe and Equatorial Guinea which was the cause of
their
being arrested in Zimbabwe, where they face the possibility of
being extradited to Equatorial Guinea, the state has a
particular
duty to protect them in the situation in which they now find
themselves. In support of this submission they placed
considerable
reliance on the decision of this Court in
Mohamed and Another v
President of the Republic of South Africa and Others.
33
Mohamed
’s case dealt with an entirely different
situation to that which exists in the present case. In that case
certain state
functionaries had colluded with the FBI to secure the
removal of Mohamed from South Africa to the USA. In doing so they
had
acted illegally and in breach of Mohamed’s rights under
the Constitution. The Court held that 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.”
34
It was this that led this Court to say:
“
It
would not necessarily be futile for this Court to pronounce on the
illegality of the governmental conduct in issue in this
case”
35
and that it would not
“
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.”
36
On the facts of the case, however, and despite the fact that it made
a declaration that the government had acted unlawfully in
handing
Mohamed over to the FBI, it declined to make an order requiring the
government to take positive action to ameliorate
the prejudice
resulting from the unlawful act.
O’Regan J refers to the fact that Mohamed was in the USA at
the time. But the relevant events in that case all took place
in
South Africa. His rights were infringed in South Africa by
government officials and not in the USA where he found himself
as a
result of their having violated his rights. This Court therefore
had no difficulty in finding that his constitutional
rights had
been breached. The state argued that Mohamed had consented to being
taken to the USA and had accordingly waived
his rights under the
Bill of Rights. That was denied by Mohamed. In dealing with the
question of waiver this Court held:
“
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.”
37
It then examined the evidence and concluded:
“
[I]t
has not been established that any agreement which Mohamed might have
expressed to his being delivered to the United States
constitutes
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.”
38
The facts of the present case are entirely different. The
applicants were not removed from South Africa by the government,
or
with the government’s assistance. They left South Africa
voluntarily and now find themselves in difficulty in Zimbabwe
and
at risk of being extradited to Equatorial Guinea. Their arrest in
Zimbabwe, the criminal charges brought against them there,
and the
possibility of their being extradited from Zimbabwe to Equatorial
Guinea are not the result of any unlawful conduct
on the part of
the government or of the breach of any duty it owed to them.
Police who receive information that a bank robbery is being planned
do not commit a wrong by failing to advise the would be
robbers of
the information that they have, nor do they act illegally by lying
in wait at the site of the proposed robbery in
order to apprehend
the robbers when they arrive at the scene. For a court to hold
otherwise would undermine legitimate methods
of policing and law
enforcement.
The applicants characterise what happened as a trap. But this too
is wrong. There is nothing to suggest that the South African

authorities encouraged the applicants in any way to embark upon the
venture in which they were engaged or induced them to do
so. At
best for the applicants the South African authorities failed to
warn them of the intelligence that they had received
or of the fact
that it would be passed on to Zimbabwe and Equatorial Guinea. But
that was not a breach of any duty owed by
the South African
government to the applicants. On the contrary, a failure to pass on
the intelligence to the authorities in
Zimbabwe and Equatorial
Guinea would have been a breach of the duties that South Africa
owed to those countries.
39
Even if the intelligence passed on by South Africa to Zimbabwe and
Equatorial Guinea led to the arrests in Zimbabwe, the passing
on of
the intelligence was not a wrongful act. In the times in which we
live it is essential that this be done, and comity
between nations
would be harmed by a failure to do so. No wrong has been done to
the applicants by the South African government
that has to be
remedied, nor is there a consequence of unlawful conduct that has
to be ameliorated.
The Bill of Rights binds the South African government, but does not
bind other governments. As the Canadian Supreme Court has
said with
regard to the application of its own constitution in respect of
appeals by Canadian nationals to be protected against
the
application of inconsistent foreign law,
“
individuals
who choose to leave Canada leave behind Canadian law and procedures
and must generally accept the local law, procedure
and punishments
which the foreign state applies to its own residents.”
40
There too, a distinction is drawn between extradition proceedings
in Canada, which are subject to constitutional scrutiny,
and the
non-retention of constitutional rights if extradition takes place,
or if the national is out of the country.
41
The same rule is applicable in the United States.
42
Subject to an important qualification that I raise later in this
judgment concerning law, procedure and punishment inconsistent
with
international human rights norms, I would adopt that principle for
the purpose of South African law.
In the present case the actors responsible for the action against
which the applicants demand protection from the South African

government are all actors in the employ of sovereign states over
whom our government has no control. The laws to which objection
is
taken are the laws of foreign states who are entitled to demand
that they be respected by everyone within their territorial

jurisdiction, and also by other states. The applicants have no
right to demand that the government take action to prevent those

laws being applied to them.
Mohamed
’s case is not
authority for the contrary submission advanced by the applicants.
Section 3 of the Constitution
This does not mean that our Constitution is silent on this issue.
Section 3 of the Constitution provides:
“
(1)
There is a common South African citizenship.
(2) All citizens are —
(a) equally entitled to the
rights, privileges and benefits of citizenship; and
(b) equally subject to the
duties and responsibilities of citizenship.
(3) National legislation must
provide for the acquisition, loss and restoration of citizenship.”
The relevance of these provisions to diplomatic protection is
discussed by Erasmus and Davidson in an article in the South

African Yearbook of International Law.
43
Although I take a somewhat different view as to the content to be
given to the benefits and privileges of citizens guaranteed
by
section 3, I agree with much of what they say, and to a large
extent with the conclusions that they reach.
As a nation we have committed ourselves to uphold and protect
fundamental rights which are the cornerstone of our democracy.
We
recognise a common citizenship and that all citizens are equally
entitled to the rights, privileges and benefits of citizenship.

Whilst I have held that there is no enforceable right to diplomatic
protection, South African citizens are entitled to request
South
Africa for protection under international law against wrongful acts
of a foreign state.
They are not in a position to invoke international law themselves
and are obliged to seek protection through the state of which
they
are nationals. Whilst the state is entitled but not obliged under
international law to take such action, it invariably
acts only if
requested by the national to do so.
44
South African citizenship requirements
45
are such that citizens invariably, if not always, will be nationals
of South Africa. They are entitled, as such, to request
the
protection of South Africa in a foreign country in case of need.
Nationality is an incident of their citizenship which entitles them
to the privilege or benefit of making such a request. Should
there
ever be an exceptional case where the citizen’s connection
with South Africa is too remote to justify a claim of
nationality,
it would be a legitimate response to such a request to say that
South Africa is not entitled to demand diplomatic
protection for
that person.
46
But apart from that, the citizen is entitled to have the request
considered and responded to appropriately.
When the request is directed to a material infringement of a human
right that forms part of customary international law, one
would not
expect our government to be passive. Whatever theoretical disputes
may still exist about the basis for diplomatic
protection, it
cannot be doubted that in substance the true beneficiary of the
right that is asserted is the individual.
47
The founding values of our Constitution include human dignity,
equality and the advancement of human rights and freedoms. Equality

is reflected in the principle of equal citizenship demanded by
section 3.
The advancement of human rights and freedoms is central to the
Constitution itself. It is a thread that runs throughout the

Constitution and informs the manner in which government is required
to exercise its powers. To this extent, the provisions
of section
7(2) are relevant, not as giving our Constitution extraterritorial
effect, but as showing that our Constitution
contemplates that
government will act positively to protect its citizens against
human rights abuses.
The entitlement to request diplomatic protection which is part of
the constitutional guarantee given by section 3 has certain

consequences. If, as I have held, citizens have a right to request
government to provide them with diplomatic protection, then

government must have a corresponding obligation to consider the
request and deal with it consistently with the Constitution.
48
I mention later that there may even be a duty in extreme cases for
the government to act on its own initiative.
49
This, however, is a terrain in which courts must exercise
discretion and recognise that government is better placed than they

are to deal with such matters.
According to the government’s answering affidavit its policy
in regard to such matters was correctly stated by Deputy
Minister
of Foreign Affairs Mr Aziz Pahad in an interview with the media, a
transcript of which was annexed by the applicants
to their founding
affidavit. The transcript is in the following terms:
“
[A]s
their government, we have to ensure that all South African citizens,
whatever offence they have carried out or are charged
with, must
receive a fair trial, they must have access to their lawyers, they
must be tried within the framework of the Geneva
Convention, they
must be held in prison within the framework of the Geneva Convention
and International law and we will always,
it is our constitutional
duty to ensure that this is getting out within the framework of the
Geneva Convention and that there
is a fair trial.”
There may thus be a duty on government, consistent with its
obligations under international law, to take action to protect
one
of its citizens against a gross abuse of international human rights
norms. A request to the government for assistance in
such
circumstances where the evidence is clear would be difficult, and
in extreme cases possibly impossible to refuse. It is
unlikely that
such a request would ever be refused by government, but if it were,
the decision would be justiciable, and a
court could order the
government to take appropriate action.
There may even be a duty on government in extreme cases to provide
assistance to its nationals against egregious breaches of

international human rights which come to its knowledge. The victims
of such breaches may not be in a position to ask for assistance,

and in such circumstances, on becoming aware of the breaches, the
government may well be obliged to take an initiative itself.
The difficulty of dealing with legal claims for diplomatic
protection is exemplified by the approach of courts confronted with

such claims. The Special Rapporteur draws attention to cases in
British, Dutch, Spanish, Austrian, Belgian, and French courts
in
which claims by individuals against their governments for
diplomatic protection were dismissed.
50
He refers to these cases as demonstrating an expectation that
courts should come to the assistance of nationals injured by

foreign states. The fact that the claims were dismissed shows,
however, how difficult it is to do so.
Even in those countries where the constitution recognises that the
state has an obligation to afford such protection, the ILC
report
suggests that there is some doubt as to whether that obligation is
justiciable under municipal law.
51
A court cannot tell the government how to make diplomatic
interventions for the protection of its nationals. Germany, which

has a long tradition of recognising a state obligation to provide
diplomatic assistance to nationals injured by foreign states

recognises this, and leaves much to the discretion of the
government.
52
Although the exercise of the discretion can be tested for
compliance with the constitution,
“
[t]he
scope of discretion in the foreign policy sphere is based on the
fact that the shape of foreign relations and the course
of their
development are not determined solely by the wishes of the Federal
Republic of Germany and are much more dependent upon
circumstances
beyond its control. In order to enable current political objectives
of the Federal Republic of Germany to be achieved
within the
framework of what is permissible under international and
constitutional law, the Federal Basic Law grants the organs
of
foreign affairs wide room for manoeuvre in the assessment of foreign
policy issues as well as the consideration of the necessity
for
possible courses of action.”
53
The Court of Appeal in England recently had occasion to consider in
the
Abbasi
case whether claims for diplomatic protection are
justiciable.
54
After a careful review of the relevant authorities it came to the
conclusion that although there is no enforceable duty under
English
law to protect citizens injured by breaches of their fundamental
rights, the discretion that the Foreign Office has
to provide such
protection is not beyond a court’s powers of review if it can
be shown that the decision was irrational
or contrary to legitimate
expectation. According to this judgment:
“
It is
highly likely that any decision of the Foreign and Commonwealth
Office, as to whether to make representations on a diplomatic
level,
will be intimately connected with decisions relating to this
country’s foreign policy, but an obligation to consider
the
position of a particular British citizen and consider the extent to
which some action might be taken on his behalf, would
seem unlikely
itself to impinge on any forbidden area.
The extent to which it may be
possible to require more than that the Foreign Secretary give due
consideration to a request for
assistance will depend on the facts
of the particular case.”
55
We were not referred to decisions of other national courts which
suggest a higher intensity of review than that evinced by
the
German and English decisions. None are referred to by the Special
Rapporteur, and I am not aware of any other decisions
that may be
relevant to evaluating international practice.
A decision as to whether, and if so, what protection should be
given, is an aspect of foreign policy which is essentially the

function of the executive. The timing of representations if they
are to be made, the language in which they should be couched,
and
the sanctions (if any) which should follow if such representations
are rejected are matters with which courts are ill equipped
to
deal. The best way to secure relief for the national in whose
interest the action is taken may be to engage in delicate
and
sensitive negotiations in which diplomats are better placed to make
decisions than judges, and which could be harmed by
court
proceedings and the attendant publicity.
This does not mean that South African courts have no jurisdiction
to deal with issues concerned with diplomatic protection.
The
exercise of all public power is subject to constitutional control.
Thus even decisions by the President to grant a pardon
56
or to appoint a commission of inquiry
57
are justiciable. This also applies to an allegation that government
has failed to respond appropriately to a request for diplomatic

protection.
For instance if the decision were to be irrational, a court could
intervene. This does not mean that courts would substitute
their
opinion for that of the government or order the government to
provide a particular form of diplomatic protection.
“
Rationality
. . . is a minimum threshold requirement applicable to the exercise
of all public power by members of the Executive
and other
functionaries. Action that fails to pass this threshold is
inconsistent with the requirements of our Constitution and
therefore
unlawful. The setting of this standard does not mean that the courts
can or should substitute their opinions as to
what is appropriate
for the opinions of those in whom the power has been vested. As long
as the purpose sought to be achieved
by the exercise of public power
is within the authority of the functionary, and as long as the
functionary’s decision,
viewed objectively, is rational, a
court cannot interfere with the decision simply because it disagrees
with it or considers
that the power was exercised inappropriately.”
58
If government refuses to consider a legitimate request, or deals
with it in bad faith or irrationally, a court could require

government to deal with the matter properly. Rationality and bad
faith are illustrations of grounds on which a court may be

persuaded to review a decision. There may possibly be other grounds
as well and these illustrations should not be understood
as a
closed list.
What needs to be stressed, however, in the light of some of the
submissions made to us in this case, is that government has
a broad
discretion in such matters which must be respected by our courts.
With this in mind, I proceed now to deal with the
specific claims
made by the applicants. I will deal with each of the claims in
turn, though not in the same order as they appear
in the notice of
motion.
The claim to be extradited from Zimbabwe to South Africa
The relief claimed by the applicants in this regard is as follows:
“
Directing
and ordering the government . . . to take all reasonable and
necessary steps as a matter of extreme urgency, to seek
the release
and/or extradition of the applicants from the governments of
Zimbabwe and/or Equatorial Guinea, as the case may be,
to South
Africa.”
In terms of the Constitution the prosecuting authority, headed by
the National Director of Public Prosecutions, has the power
to
institute criminal proceedings on behalf of the state and to carry
out any necessary functions incidental to the instituting
of
criminal proceedings.
59
This would include applying for extradition where this is
necessary. The powers of the prosecuting authority, for which the

Minister of Justice and Constitutional Affairs assumes final
responsibility,
60
must be exercised by the prosecuting authority without fear,
favour, or prejudice.
61
Decisions to institute prosecutions may raise policy issues which
are far from easy to determine where, as in the present case,
the
events are already the subject matter of criminal proceedings in
another country.
In terms of the Promotion of Administrative Justice Act
62
a decision to institute a prosecution is not subject to review.
63
The Act does not, however, deal specifically with a decision not to
prosecute. I am prepared to assume in favour of the applicants
that
different considerations apply to such decisions, and that there
may possibly be circumstances in which a decision not
to prosecute
could be reviewed by a court.
64
But even if this assumption is made in favour of the applicants,
they have failed to establish that this is a case in which
such a
power should be exercised.
It is not disputed that the prosecuting authority in South Africa
opened an investigation into the possibility of charging
the
applicants under the Regulation of Foreign Military Assistance Act
65
with being party to a planned coup in Equatorial Guinea. Section
3(b) of this Act makes it an offence to
“
render
any foreign military assistance to any state or organ of state,
group of persons or other entity or person unless such
assistance is
rendered in accordance with an agreement approved in section 5.”
Foreign military assistance includes
“
any
action aimed at overthrowing a government or undermining the
constitutional order, sovereignty or territorial integrity of
a
state”.
66
It is not suggested that the applicants had approval under section 5
to provide “foreign military assistance”.
If there is substance in the suggestion that a coup was being
planned, there would be a basis for the South African government
to
put the applicants on trial here and to apply for their extradition
for that purpose. To do so, however, they would have
to meet the
requirements of the Zimbabwean law regulating extradition from that
country to South Africa. The relevant law is
the Revised Edition of
the Extradition Act of 1996 (the Zimbabwe Extradition Act). South
Africa is a designated country in
terms of that Act.
Section 16 of the Zimbabwe Extradition Act requires requests for
extradition by a designated country to be accompanied by a
warrant
of arrest giving particulars of the offence in respect of which the
extradition is sought and such evidence as would
establish a prima
facie case in a court of law in Zimbabwe that the person concerned
has committed the offence concerned in
the designated country.
67
Mr J P Pretorius (Pretorius), the Deputy Director of Public
Prosecutions in the Priority Crimes Litigation Unit of the
prosecuting
authority is in charge of the investigations against
the applicants. An affidavit by him forms part of the record in the
High
Court proceedings. It says:
“
At
present there is not sufficient evidence to make a decision whether
to institute a prosecution against the persons concerned
in
connection with this matter. This situation may change in the near
future.”
Griebenow says that he was told on 17 May by Pretorius that he
would be drawing up an indictment that evening. Pretorius denies

this and says that he told Griebenow that he would start working on
the indictment on the 17
th
. He goes on to say that the
docket is not complete and further investigations are necessary.
The allegation by Pretorius that
there was insufficient evidence to
make a decision about a prosecution is not denied. Counsel for the
applicants conceded that
he could not dispute this allegation. He
suggested that a charge could be framed on the basis of the
applicants’ own
evidence that they were going to the DRC to
provide security services. This he says is covered by the
definition of foreign
military assistance which includes:
“
[S]ecurity
services for the protection of individuals involved in armed
conflict or their property”.
68
But even if this be so, there is a vast difference between
defending a mine owner against unlawful assaults on its property,

and planning a coup against the head of a state with which South
Africa enjoys diplomatic relations. South Africa and Equatorial

Guinea have also entered into a joint security agreement entitled
“Agreement between the Government of the Republic of
South
Africa and the Government of the Republic of Equatorial Guinea
Concerning Cooperation on Defence and Security”.
Article 3 of
the Agreement provides the functions of the South Africa–Equatorial
Guinea Joint Commission on Defence and
Security. These include:
promoting cooperation at all levels in the fields of defence and
security; exchanging security information
on the activities and
movement of elements threatening the security and stability of the
two countries; establishing effective
channels of communication
between the defence and security forces of the two countries;
dealing with matters of cross-border
crimes and illegal
immigration; briefing members on the security situation prevailing
in each country generally and exchanging
ideas and acting jointly
on how the attendant problems may be addressed; and dealing with
any other matters which in the opinion
of the parties will enhance
better mutual understanding and strengthen relations of solidarity
between the two countries.
An application for extradition must provide particulars of the
offence and prima facie evidence to support the charge. If the

prosecuting authority’s investigations are directed to the
possibility of putting the applicants on trial for planning
a coup
in Equatorial Guinea it must have evidence to support that
allegation. Secondly, the offence for which the extradition
is
sought must be an offence for which the accused person could have
been charged and prosecuted in Zimbabwe if the offence
had been
committed there.
69
Neither of these propositions has been established by the
applicants. Zimbabwe does not have legislation comparable to the

Regulation of Foreign Military Assistance Act.
The applicants seek to overcome this difficulty by saying that they
will consent to being extradited to South Africa should
such an
application be made. But that is no answer. If the government lacks
evidence to establish a prima facie case against
the applicants it
is not entitled to put them on trial. Nor would a Zimbabwean court
be entitled to order that they be extradited
to South Africa rather
than Equatorial Guinea. An extradition by consent in such
circumstances would be no more than a device
to remove the
applicants from Zimbabwe and bring them back to South Africa, where
they would then have to be put on trial for
a lesser offence than
participating in plans for a coup, or be released because of the
lack of evidence of their having committed
any crime. To pursue a
request for extradition in such circumstances would be contrary to
South African law and Zimbabwean
law and inconsistent with the
government’s duty to conduct its foreign relations in good
faith.
The government says that the prosecuting authority’s
investigations have not been completed and there is not yet
sufficient
evidence to take a decision to institute a prosecution.
This is not denied by the applicants, who themselves deny that they

were party to plans to stage a coup. That being so, it must be
accepted that when these proceedings were initiated the government

lacked the evidence necessary to apply for the extradition of the
applicants. On that ground alone the first claim must fail.
Counsel
for the applicants was constrained to concede that this was so and
did not persist in the claim.
In the circumstances it is not necessary to deal with the question
whether, if there were a legitimate basis for seeking the

extradition of the applicants, this Court would have had the power
in the circumstances of this case to order the government
to do so.
The claim that steps be taken to secure the release of the
applicants from custody in Zimbabwe
There is no evidence to suggest that the charges that the
applicants face in Zimbabwe are not offences according to
Zimbabwean
law, or that there is no evidence to justify the
bringing of such charges against them. That being so, there is no
basis on
which South Africa would be entitled to exert diplomatic
pressure on Zimbabwe for them to be released, let alone for a court
to order that this be done.
The risk of capital punishment
The claim is formulated as follows:
“
Directing
and ordering the Government to seek assurance as a matter of extreme
urgency from the Zimbabwean and Equatorial Guinean
Governments not
to impose the death penalty on the applicants.”
There is nothing to suggest that the applicants are at risk of
being charged with an offence in Zimbabwe for which capital

punishment would be a competent sentence. That possibility need
not, therefore, be considered. There is, however, evidence
to
suggest that the applicants may possibly be charged with capital
offences in Equatorial Guinea.
There can be no doubt that capital punishment is inconsistent with
the provisions of our Bill of Rights.
70
But the question whether South African citizens can require our
government to take action to protect them against conduct in
a
foreign country, which would be lawful there, but would infringe
their rights if committed in South Africa, raises entirely

different issues. Although the abolitionist movement is growing
stronger at an international level,
71
capital punishment is not prohibited by the African Charter on
Human and Peoples’ Rights or the International Covenant
on
Civil and Political Rights, and is still not impermissible under
international law. The execution of the sentence, if imposed,
would
be by the state of Equatorial Guinea, which means that attempts to
mitigate the sentence would necessarily engage the
foreign
relations between the two countries.
The government’s policy on this issue is that it makes
representations concerning the imposition of such punishment only

if and when such punishment is imposed on a South African citizen.
The government’s answering affidavit goes on to say:
“
It is
a concern of the South African government that there are South
Africans who are indicted or incarcerated in foreign countries
where
the death sentence is a competent sentence. It is a continuing
effort where appropriate to make representations regarding
the death
sentence as a form of punishment.”
The applicants are entitled to the benefit of this policy, and if
capital punishment were to be imposed on them, then consistently

with its policy, government would have to make representations on
their behalf. There is no evidence to suggest that this would
not
happen.
Counsel for the amicus curiae submitted that it is cruel treatment
to put a person on trial in a foreign country to face a
possible
death sentence if convicted. However, as long as the proceedings
and prescribed punishments are consistent with international
law,
South Africans who commit offences in foreign countries are liable
to be dealt with in accordance with the laws of those
countries,
and not the requirements of our Constitution, and are subject to
the penalties prescribed by such laws.
72
The question whether representations should be made now or later is
a matter of judgment and a question of timing. There may
in fact
prove to be no need for representations to be made at all. The
applicants may not be convicted, or if convicted, may
not be
sentenced to death. Counsel for the applicants submitted that if a
death sentence were to result, there might be insufficient
time
between sentence and execution for representations to be made.
There is, however, nothing to show that if the applicants
were to
be convicted and sentenced to death in Equatorial Guinea, there
would not be sufficient time to make effective representations.
Bearing in mind the deference to which the government is entitled
in such matters it cannot be said that its response to the

applicants’ demand that it make the representations now, is
inconsistent with the Constitution. The claim that the government

be directed as a matter of extreme urgency to seek an assurance
that the death penalty will not be imposed must therefore be

dismissed.
Extradition to Equatorial Guinea
According to Griebenow, Equatorial Guinea has made a request to
Zimbabwe for the extradition of the applicants. He bases this

averment on submissions made to the court in Zimbabwe by a
representative of the Attorney-General in opposing an application

by the applicants to be released from custody. He also refers to
the fact that the applicants’ legal representatives
in
Zimbabwe were told by the Attorney-General’s representative
in Zimbabwe that a request for extradition had been made
by
Equatorial Guinea, and were shown pages from a document from the
Zimbabwean Ministry of Foreign Affairs directed to the

Attorney-General of Zimbabwe in which it is recommended that the
application for extradition be considered favourably. Reference
is
also made to the fact that several people, including a number of
South African citizens, have already been arrested in Equatorial

Guinea in connection with the alleged coup.
On 28 April 2004, the Government of Zimbabwe passed a statutory
instrument in terms of which Equatorial Guinea was added to
the
list of countries to which Zimbabwe may extradite persons. The
applicants also refer to news reports in Zimbabwe that President

Nguema of Equatorial Guinea recently visited Zimbabwe for
Independence-day celebrations, and on that occasion had a five hour

meeting with President Mugabe of Zimbabwe at which the subject of
the extradition of the applicants to Equatorial Guinea was

discussed. This was referred to in comments made by the President
of Equatorial Guinea after the meeting. The respondents offered
no
evidence to counter these allegations. I am satisfied that in the
circumstances the applicants have established that there
is a real
risk that they are likely to be faced with proceedings in Zimbabwe
for their extradition to Equatorial Guinea.
This does not mean, however, that they will in fact be extradited.
The applicants deny the allegation that they were party
to a plan
to stage a coup in Equatorial Guinea. There is no reference to the
precise nature of the charge on which the request
for extradition
is said to have been made, nor to the evidence that Equatorial
Guinea has to support a claim for extradition
under the Zimbabwe
Extradition Act. In terms of the Zimbabwe Extradition Act an
enquiry has to be conducted by a magistrate
to establish whether or
not there are grounds on which an extradition order can
legitimately be made. The applicants will be
entitled to resist
such an order at the hearing. If the evidence against them is
insufficient to justify extradition, the magistrate
will not be
entitled to grant an order. If an order is made, it would be
subject to appeal.
The applicants argue that there is a risk that Zimbabwe will act
illegally and hand them over to Equatorial Guinea without
an order
being made for their extradition. They have, however, produced no
evidence to support this allegation. The applicants
have been in
custody for over three months during which the court proceedings
against them have been pending. If the Zimbabwean
authorities
contemplate handing them over to Equatorial Guinea without an
extradition order sanctioning such a procedure, it
is unlikely that
they would not have done so immediately after their arrest, or as
soon as they received the request for extradition.
The applicants rely on media reports that the President of Zimbabwe
had entered into an agreement with the President of Equatorial

Guinea to extradite the applicants to Equatorial Guinea in exchange
for the supply of oil. No attempt has been made to verify
the
accuracy of these reports. Apart from the reference to the media
report, all that is said in support of the allegation
is that there
have been instances in the past in which the Zimbabwean government
has ignored orders of court, and that the
Zimbabwean authorities
have in fact failed to comply with certain orders relating to the
conditions in which they are kept
in custody. But this does not
mean that Zimbabwe is likely to act illegally, in breach of the
duty that it owes to South Africa
under international law, and hand
South African citizens over to Equatorial Guinea contrary to orders
made by courts dealing
with the extradition application. The South
African government cannot reasonably be expected to conduct its
diplomatic relations
with Zimbabwe on the assumption that this
might happen, and to make demands on the Zimbabwean government on
the assumption
that they will act illegally and contrary to South
Africa’s rights under international law.
The question of extradition to Equatorial Guinea has, however, been
debated in the High Court and this Court and no purpose
would be
served by declining to deal with that question on the grounds that
the demand is premature.
The claim relating to the risk of extradition to Equatorial Guinea
was originally formulated in general terms but during argument

counsel for the applicants limited the claim and formulated it as
follows:
“
Directing
and ordering the Government to seek an assurance as a matter of
extreme urgency from the Zimbabwean Government that
the applicants
will not be released or extradited to Equatorial Guinea without a
prior assurance being obtained from Equatorial
Guinea to the effect
that the death sentence will not be imposed, and if imposed, will
not be carried out.”
There were two strands to the applicants’ argument. The first
was based on the decision in
Mohamed
’s case.
73
I have already dealt with that argument.
74
It has no substance and must be rejected. The second relates to an
allegation still to be considered, and that is that if extradited

the applicants will be subjected to a trial that is not fair. I
deal later with this aspect of their claim.
The claim for extradition has not yet been lodged in the
Magistrates’ Court and although there may be reasonable
grounds
to anticipate what the charges may be, the details of the
evidence and the charges are unknown. Without that information it

is not possible to say whether or not there is a real risk that the
applicants will be extradited to Equatorial Guinea to face
a
capital charge.
No request was made for this relief prior to the institution of
these proceedings. Moreover, according to the ILC report there
is
general agreement that diplomatic protection “is concerned
with injury under international law, and not injury under
domestic
law.”
75
Capital punishment is permissible both in Zimbabwe and Equatorial
Guinea. Capital punishment is also not impermissible under

international law. If the applicants are extradited lawfully from
Zimbabwe to Equatorial Guinea they cannot complain that they
have
suffered an injury according to international law solely on the
grounds that they will face a capital charge in Zimbabwe.
In the
light of government’s stated policy concerning capital
punishment in foreign countries, its response in its answering

affidavit that it would seek an assurance only if capital
punishment is imposed, is not a response with which a court can
interfere.
The claim as formulated in the prayer and as amended by counsel
must therefore be dismissed.
Fair detention and trial
The claim concerning fair detention and fair trial is formulated as
follows:
“
Directing
and ordering the Government to ensure as far as is reasonably
possible, that the rights of the applicants to fair detention
and
fair trial as guaranteed in section 35 of the Constitution are at
all times respected and protected in Zimbabwe or Equatorial
Guinea,
as the case may be.”
As far as the fair trial claim is concerned, the prayer that is
directed to section 35 of our Constitution is misconceived.
For
reasons that I have already given the claim as formulated cannot
succeed.
Serious allegations have, however, been made about the criminal
justice system in Equatorial Guinea. The applicants allege
that if
they are put on trial there and charged with being party to the
alleged coup, they will be exposed to the risk of being
convicted
and put to death as a result of an unfair trial. That is a grave
allegation which calls for close scrutiny and careful
consideration
by this Court. The incorrect formulation of the applicants’
claim should not stand in the way of this being
done.
The allegations made about the justice system in Equatorial Guinea
are based on reports of Amnesty International, the International

Bar Association and a Special Rapporteur of the United Nations
Commission on Human Rights. They cover a period from January
1999
to March 2004.
The Special Rapporteur reported in January 1999. His report refers
to lawlessness, torture, the beating of prisoners, overcrowded

prison conditions with a complete lack of hygiene and inadequate
food, impunity enjoyed by agents of the state, and the lack
of due
process within the justice system.
Amnesty International sent a mission to observe a trial of 144
persons alleged to have infringed state security between 23
May and
9 June 2002. The observer concluded that the trial was
characterised by serious human rights violations and countless

procedural irregularities. Despite overt evidence of broken limbs
and obvious injuries, complaints of torture were not investigated.

Defence lawyers were allowed only one day to consult with their
clients before the trial started. The trial was also condemned
by
the European Parliament which called for the guilty verdict to be
annulled and the release of the convicted persons. In
its report,
Amnesty International mentions that it has on numerous occasions
submitted its concerns about human rights violations
to the
Equatorial Guinean authorities and has urged them to approve and
implement safeguards to prevent arbitrary detention,
torture,
ill-treatment and trials which do not comply with due process of
law. These are requirements of the African Charter
on Human and
Peoples’ Rights and the International Covenant on Civil and
Political Rights, which were ratified by the
government of
Equatorial Guinea in 1986 and 1987 respectively.
In March 2004 Amnesty International issued a press release drawing
attention to the torture of foreign nationals then in custody
and
alleged to be mercenaries, and the deplorable conditions in which
they were being detained. It questioned whether they
would receive
a fair trial.
In July 2003 the International Bar Association sent a fact finding
mission to Equatorial Guinea. The mission conducted wide
ranging
interviews with government ministers, politicians, judges, and the
legal profession. In a lengthy report, including
recommendations as
to what needs to be done to secure compliance with the rule of law
and an independent judiciary, the findings
and conclusions of the
mission included the following:
The executive exercises considerable control over both the
legislature and the judiciary.
There is no separation of powers and very little or no respect for
the rule of law. Torture, failure to guarantee the right
to a fair
trial, lack of freedom of expression and association, poor prison
conditions and the failure of the judiciary to
act independently
are some of the examples of human rights abuses that occur with
impunity.
The lack of independence of the judiciary, the expectation that
judges will be loyal to the government, and the use of military

judges in civilian courts are cause for concern.
The South African government says that it is not its policy to
comment on the justice systems of foreign countries and it has

declined to do so. It takes the attitude that the reports are not
admissible in evidence and that the court cannot make a finding
on
the efficacy and fairness of the legal and judicial systems of
Equatorial Guinea without the benefit of expert evidence.
Its attitude, as expressed in the answering affidavit, is that a
decision as to whether or not to intervene is one that will
be
taken by a responsible authority in South Africa should the
applicants be extradited to Equatorial Guinea. Whilst this Court

cannot and should not make a finding as to the present position in
Equatorial Guinea on the basis only of these reports, it
cannot
ignore the seriousness of the allegations that have been made. They
are reports of investigations conducted by reputable
international
organisations and a Special Rapporteur appointed by the United
Nations Human Rights Committee. The fact that
such investigations
were made and reports given is itself relevant in the circumstances
of this case.
76
If the reports are accurate and reflect the present position in
Equatorial Guinea, and if the applicants are extradited to

Equatorial Guinea to stand trial there, there would be serious
concern about the fairness of the trial that they would face.
A
concern that goes beyond the differences in legal procedure
referred to in cases such as
Canada v Schmidt
77
and
Neely v Henkel.
78
What are the obligations of the government to the applicants in
such a situation?
The history of coups and counter coups in Africa has undermined
democracy on the continent. Such practices are the antithesis
of
the foreign policy principles of the South African government.
These principles and the priorities of the Ministry of Foreign

Affairs are referred to in the evidence. They include a commitment
to justice and international law in the conduct of relations

between nations, a commitment to interact with African partners as
equals, and a commitment to the promotion of the New Partnership

for Africa’s Development, described as “a continental
instrument to advance people-centred development based on

democratic values and principles.” It would be a breach of
South Africa’s duty to Equatorial Guinea, and its

international obligations, in particular to other African states,
to frustrate a criminal prosecution instituted there simply
because
the accused persons are South African nationals.
On the other hand, if the allegations by the applicants that they
will not get a fair trial in Equatorial Guinea prove to be
correct,
and they are convicted and sentenced to death, there will have been
a grave breach of international law harmful to
our government’s
foreign policy and its aspirations for a democratic Africa. As far
as the applicants are concerned the
consequences would be
catastrophic, and they will have suffered irreparable harm.
79
The applicants are not in Equatorial Guinea and they have not been
put on trial there. No injury has been done to them by that
country
and no injury will be done unless they are put on trial there; nor
will any wrong be done if they are put on trial
and the proceedings
are conducted fairly. To this extent the claim for protection is
premature. It cannot, however, be said
that there is not a risk
that the consequences that the applicants fear will happen. Should
that risk become a reality the
government would be obliged to
respond positively. Given its stated foreign policy, there is no
reason to believe that this
will not be done.
This matter has been complicated by the excessive and precipitate
demands that the applicants have made, and the form in which
their
claims for relief were couched. They relied directly on the Bill of
Rights and not on the privileges and benefits to
which they are
entitled under section 3 of the Constitution. One of the results of
this is that we may not have all the evidence
that would be
relevant to a section 3 claim.
The situation is evolving and it is not known how it will develop.
It is complicated by the fact that other South African citizens
are
already facing the likelihood of being tried in Equatorial Guinea,
having been arrested there on allegations that they
were party to
the attempted coup. The government has to deal with that situation
as well, and it appears from the record it
is doing so. What
happens in that regard may have a bearing on how the government
will deal with the applicants’ request
for diplomatic
protection.
It is also relevant to have regard to the limited power that the
government has under international law to affect decisions
of a
foreign state. It is essentially a power of persuasion, and it is
for this reason that courts everywhere are reluctant
to intervene
in such matters, even if, as in Germany, they have the power to do
so. Thus in the
Hess
case
80
the Federal Constitutional Court was at pains to point out that
“
the
Federal Government enjoys wide discretion in deciding the question
of whether and in what manner to grant protection against
foreign
States.”
81
The situation which exists in the present case is one which calls
for delicate negotiations to ensure that if reasonably possible
the
fears that the applicants entertain can be put to rest, and that
the trial, if one takes place, is conducted in a way that
meets
internationally accepted standards. The assessment of the risk, the
best way of avoiding it and the timing of action
are essentially
matters within the domain of government.
The situation that presently exists calls for skilled diplomacy the
outcome of which could be harmed by any order that this
Court might
make. In such circumstances the government is better placed than a
court to determine the most expedient course
to follow. If the
situation on the ground changes, the government may have to adapt
its approach to address the developments
that take place. In the
circumstances it must be left to government, aware of its
responsibilities, to decide what can best
be done.
We were told by counsel for the applicants that there have been
ongoing sensitive discussions between the legal representatives
of
the applicants and representatives of government. If those
discussions are continued they will no doubt be conducted in
the
light of what is said in this judgment. The applicants have not
established that the government breached or threatened
to breach
any duty it has under the Constitution or international law. In the
circumstances the applicants are not entitled
to relief in this
regard.
Claims relating to conditions of detention
The claims dealing with detention are formulated as follows:
“
Directing
and ordering the Government to ensure as far as is reasonably
possible, that the dignity of the applicants as guaranteed
in
section 9 of the Constitution of South Africa (the Constitution) are
at all times respected and protected in Zimbabwe or Equatorial

Guinea, as the case may be.
Directing and ordering the
Government to ensure as far as is reasonably possible, that the
applicants’ right to freedom
and security of person including
the rights not to be subjected to torture, or cruel, inhuman or
degrading treatment or punishment,
as guaranteed in section 12 of
the Constitution, are at all times respected and protected in
Zimbabwe or Equatorial Guinea, as
the case may be.
Directing and ordering the
Government to ensure as far as is reasonably possible, that the
rights of the applicants to fair detention
and fair trial as
guaranteed in section 35 of the Constitution, are at all times
respected and protected in Zimbabwe or Equatorial
Guinea, as the
case may be.
Directing and ordering the
Government to, through the office of the second respondent, report
in writing to the Registrar of this
Honourable Court on a weekly
basis as to the issues set out above where applicable.”
The applicants are presently in custody in Zimbabwe, and the claim
in so far as it relates to what might happen if they were
to be
held in Equatorial Guinea is premature. I will confine myself,
therefore, to the allegations made concerning Zimbabwe.
The claim concerning detention in Zimbabwe arises out of the
conditions in which the applicants have been detained and treated

in Chikurubi Prison. I consider it desirable to deal with these
allegations notwithstanding the inappropriate form in which
their
claim has been formulated, and to consider whether there is any
other relief to which they may be entitled.
In the founding affidavit the following allegations are made. It is
said that the applicants were assaulted and abused at the
time of
their arrest on 7 March 2004. They were initially denied access to
legal advisers, and some were tortured and forced
to make
untruthful statements against their will. When they were ultimately
allowed access to legal advisers a number of obstacles
were placed
in the way of the advisers. They had difficulty in gaining access
to the prison. When they did, they were not allowed
to consult with
the applicants in private, and members of the investigating team
insisted on being present during consultations.
The court
proceedings are being held in hospital wards in the prison, and the
public, including journalists and members of
the applicants’
families, have difficulty in gaining access to the venue because of
obstructions placed in their way.
Members of the Central
Intelligence Organisation (CIO) interrogate them in the absence of
their legal representatives despite
being asked not to do so. The
applicants are shackled with leg irons and hand cuffs when they
attend court, and court orders
requiring the shackles to be removed
have been ignored. The explanation given was that this was “on
instructions from
above”.
The conditions in which the applicants are being held in Chikurubi
Prison are described in the founding affidavit as follows.
There
are no beds. The applicants are issued with lice ridden blankets
under which they have to sleep. Most are being held
in overcrowded
cells, but four are being held in solitary confinement. All receive
inadequate food, less than the minimum standards
prescribed for
prisoners. They are required to wear tunics and short trousers
which provide inadequate protection against the
cold of an
approaching winter. They have been refused permission to accept
jerseys which were knitted for them and which comply
with prison
regulations. On one occasion eighteen of the applicants were badly
assaulted by prison warders using batons, and
after that salt was
thrown on the wounds. Criminal charges were laid and a number of
warders have been arrested and charged.
If these allegations are correct, and there is no evidence to
contradict them, the applicants have been held in deplorable

conditions. They have been humiliated, assaulted, abused and denied
proper access to their lawyers. The persons alleged to
be
responsible for these abuses are officers of the Zimbabwean
government. The applicants apparently attempted to address these

complaints through court proceedings. In the founding affidavit
reference is made to various court applications brought in

connection with these matters. The outcome of the applications is
not always referred to, though it is said that 13 favourable
court
orders have been obtained. It appears, however, that there have
been occasions on which orders given in favour of the
applicants
were ignored by the authorities in control of them. Having failed
to secure relief through the courts, the applicants
have turned
peremptorily to the South African government and demanded that it
secure relief for them. The first time that this
seems to have been
raised is in the peremptory demand made the day before the
proceedings were launched.
In the founding affidavit it is said that despite various requests
the government has been slow, unhelpful and ineffective
in
protecting the constitutional rights of the applicants. A bald
allegation is then made that the “government’s
response
to the plight of the applicants has been most disappointing”.
The affidavit goes on to say that “except
for a few isolated
consular services provided by [the] government recently, it has
been most unresponsive to the violation
of the applicants’
constitutional rights.” No specific allegations are made in
the founding affidavit that the
applicants requested assistance
from the South African High Commission to address their complaints,
and that this was refused.
It appears from a letter dated 24 March 2004 written by an attorney
acting for the applicants to the South African National
Director of
Public Prosecutions, that attorneys for the applicants met the
South African Minister of Justice and Constitutional
Development
and the National Director of Public Prosecutions and others on 23
March 2004. This was the date on which the applicants
were charged
in Zimbabwe. There is no evidence as to what took place at this
meeting. In the letter written the following day,
the National
Director of Public Prosecutions is requested to intervene to ensure
that the applicants have proper access to
lawyers of their choice
and that full consular services be rendered to them. It is conceded
in the founding affidavit that
the High Commission did provide
assistance to the applicants to get access to their lawyers. The
letter also requests that
consideration be given to applying for
the extradition of the applicants to South Africa. No reference is
made in the letter
to the assaults or the conditions in which the
applicants were being detained, and no request is made for
assistance by the
government to alleviate those conditions. What
contact there was after that is not clear. The founding affidavit
mentions that
there have been various discussions with the Deputy
National Director of Public Prosecutions, Mr Henning SC. It seems
that
they were concerned with the request to be extradited to South
Africa, but no details are given about what took place. We were

also informed by counsel for the applicants that there have been
confidential discussions with the government, but we do not
know
when they commenced or what they addressed.
The government disputes the allegation that it has been unhelpful,
and says in its answering affidavit that it and its agencies

continue to do what, in law and its foreign policy, they are
entitled to do regarding the conditions of the applicants in
Zimbabwe. A supporting affidavit from the Director General of the
Department of Foreign Affairs made on 23 May gives details
of the
assistance that has been given, including, on occasions, formal
interventions with the Zimbabwean government, on 10
March, 11
March, 12 March, 13 March, 4 April, 15 April, 19 April, 26 April,
11 May, 13 May and 14 May 2004. The Director General
then
summarises the averments made saying:
“
From
the above it is thus clear that when the family members, the
applicants themselves and their legal representatives requested

assistance of the officials of the South African Embassy in
Zimbabwe, in regard to food, clothing, stationery and access by the

legal representatives to the applicants, the South African Embassy
addressed official requests to the Zimbabwean authorities
in order
to provide the necessary assistance to the applicants. At times, the
requests were approved immediately by the Zimbabwean
authorities and
other times the requests were not approved immediately. In cases of
delays the South African Embassy addressed
appropriate complaints to
the Zimbabwean authorities and thereafter the approvals were given.
I am not aware of any request for
assistance made by the applicants
and which was not taken up by the South African Embassy. To the
extent that the applicants
allege that the South African Embassy and
its diplomats did not provide assistance to them, I deny those
allegations.”
In their reply the applicants do not deny this. They say that they
do not contend that there was a failure on the part of the
South
African Embassy to provide assistance. Their complaint is that the
Embassy did not act pro-actively. The claim as formulated
by the
applicants is misconceived. There is moreover nothing to show that
the government has not provided assistance to the
applicants in
Zimbabwe when it was requested to do so. The claims made in this
regard must be dismissed.
Conclusion
To sum up, therefore, the findings I make in the light of the
evidence on record, the provisions of the Constitution and South

Africa’s obligations under international law, are:
The application raises complex questions of law, of vital
importance not only to the applicants but to our society as a

whole. In the circumstances the application for leave to appeal
directly to the Constitutional Court should be granted.
South Africa had an obligation to cooperate with Zimbabwe and
Equatorial Guinea in the prevention and combating of crime,
including, in particular, the duty to share information on
suspected coup attempts or mercenary activity.
South Africa is under no obligation to apply for the extradition of
the applicants from Zimbabwe.
The applicants’ claims as formulated in the notice of motion
that the court direct and order the government to ensure
that the
rights that the applicants have in terms of the South African Bill
of Rights are at all times respected and protected
in Zimbabwe, and
if extradited to Equatorial Guinea, that they be respected and
protected there have no basis in law and cannot
be granted.
South African nationals facing adverse state action in a foreign
country are, however, entitled to request the South African

government to provide protection against acts which violate
accepted norms of international law. The government is obliged
to
consider such requests and deal with them appropriately.
Decisions made by the government in these matters are subject to
constitutional control. Courts required to deal with such
matters
will, however, give particular weight to the government’s
special responsibility for and particular expertise
in foreign
affairs, and the wide discretion that it must have in determining
how best to deal with such matters.
Stated government policy concerning nationals in foreign countries,
who are required to stand trial there on charges for which
capital
punishment is competent, is to make representations concerning the
imposition of such punishment only if and when such
punishment is
imposed on a South African citizen. This policy adopted by South
Africa in its relations with foreign states
is not inconsistent
with international law or any obligation that the government has
under the Constitution.
Stated government policy concerning the conditions of detention and
the conduct of trials of nationals in foreign countries
is to
ensure that all South African citizens are detained in accordance
with international law standards, have access to their
lawyers and
receive a fair trial. This policy adopted by South Africa in its
relations with foreign states is not inconsistent
with
international law or any obligation that the government has under
the Constitution.
The applicants’ uncontradicted evidence is that whilst in
detention in Zimbabwe some of them have been assaulted, all
of them
have been held in deplorable conditions, and at times humiliated,
abused, and denied proper access to their lawyers.
Criminal charges
have been brought against the warders alleged to have committed the
assaults. It is not disputed that all
requests for assistance by
the applicants to the South African High Commission have been taken
up, and that the South African
High Commission made representations
to the Zimbabwean authorities about these matters.
How to respond to the events which have taken place requires great
sensitivity, calling for government evaluation and expertise.
It
would not be appropriate in the circumstances of this case for a
Court to require or propose any approach with regard to
timing or
modalities different to that adopted by government.
The applicants have failed to establish that the government’s
response to requests for assistance is inconsistent with

international law or the South African Constitution.
In the circumstances the appeal must be dismissed. Because of the
importance of the case and the complexity of the issues raised
this
is not a case in which a costs order should be made in respect of
the application for leave to appeal, or the appeal.
The following order is made:
The application for leave to appeal is granted.
The appeal is dismissed and the order made by Ngoepe JP in the High
Court is confirmed.
No order as to costs is made concerning the application for leave
to appeal and the appeal.
Langa DCJ, Moseneke J, Skweyiya J, van der Westhuizen J and Yacoob J
concur in the judgment of Chaskalson CJ.
NGCOBO J:
Introduction
I have read the judgment prepared by the Chief Justice. I am in
substantial agreement with the broad theme of the judgment
and
therefore concur in the order he proposes. However, my approach to
the issues confronting us differs to that of the Chief
Justice. In
particular, my approach to and treatment of section 3(2), including
the emphasis I place on its proper approach,
differ to that adopted
by the Chief Justice.
The central question presented in this case is whether, under
international law or our Constitution, the government has a legal

duty to provide diplomatic protection to South African nationals
who are arrested and imprisoned in a foreign country.
International law
One of the greatest ironies of customary international law is that
its recognition is dependent upon the practice of states
evincing
it. Yet at times states refuse to recognise the existence of a rule
of customary international law on the basis that
state practice is
insufficient for a particular practice to ripen into a rule of
customary international law. In so doing,
the states deny the
practice from ripening into a rule of customary international law.
The practice of imposing a legal duty to exercise diplomatic
protection
82
for an injured national or a national threatened by an injury by a
foreign state, upon the national’s request, is a victim
of
this irony. Despite numerous countries which impose this legal duty
in their constitutions, there is still a reluctance
to recognise
this practice as a rule of customary international law.
83
It remains a matter of an exercise in the progressive development
of international law.
The position in international law is summed up by the International
Court of Justice in the following passage in the
Barcelona
Traction
case:
“
The
Court would here observe that, within the limits prescribed by
international law, a State may exercise diplomatic protection
by
whatever means and whatever extent it thinks fit, for it is its own
right that the State is asserting. Should the natural
or legal
persons on whose behalf it is acting consider that their rights are
not adequately protected, they have no remedy in
international law.
All they can do is resort to municipal law, if means are available,
with a view to furthering their cause
or obtaining redress . . .
The state must be viewed as the
sole judge to decide whether its protection will be granted, to what
extent it is granted, and
when it will cease. It retains in this
respect a discretionary power the exercise of which may be
determined by considerations
of a political or other nature,
unrelated to the particular case. Since the claim of the State is
not identical with that of
the individual or corporate person whose
cause is espoused, the State enjoys complete freedom of action.
Whatever the reasons
for any change of attitude, the fact cannot in
itself constitute a justification for the exercise of diplomatic
protection by
another government, unless there is some independent
and otherwise valid ground for that.”
84
It is true that customary international law is part of our law, but
it can be altered by our law and, in particular, by our

Constitution. Section 232 of the Constitution says that customary
international law is the law in South Africa, “unless
it is
inconsistent with the Constitution or an Act of Parliament.”
It follows therefore that the next inquiry is whether
a duty exists
under our Constitution.
Is there a duty under our Constitution?
Both the applicants and the amicus contended that such a duty
exists and that it derives from the Constitution. In support
of
this contention, reliance was placed upon section 7(2) of the
Constitution. In addition the amicus also relied on section
3(2).
85
For its part, the government contended that no such duty exists
under our Constitution.
The question whether there is a constitutional duty contended for
is essentially one of a proper construction of the relevant

provisions of the Constitution, in particular, sections 3(1), 3(2)
and 7(2). These provisions must be construed in the light
of,
amongst other things, the Constitution as a whole and international
and regional human rights instruments to which the
government is a
party. Before construing these constitutional provisions, it is
necessary to discuss some of the considerations
that are relevant
in determining whether there is a constitutional duty to provide
diplomatic protection to nationals abroad.
These considerations
provide the context in which the applicable constitutional
provisions must be construed and understood.
Relevant considerations
(a) The constitutional context
The question whether the government has a constitutional duty to
provide diplomatic protection in this case must be determined
in
the light of our Constitution, and, in particular, the provisions
of the Bill of Rights. To paraphrase Mohamed J in
S v
Makwanyane,
86
our Constitution articulates our shared aspirations; the values
which bind us, and which discipline our government and its
national
institutions; the basic premises upon which all arms of government,
and at all levels, are to exercise power; the
national ethos that
defines and regulates the exercise of that power; and the moral and
ethical direction which our nation
has identified for itself. The
founding values upon which our constitutional democracy is founded
are especially relevant in
this context.
As a nation, we have committed ourselves to establishing “a
society based on democratic values, social justice and fundamental

human rights”.
87
The very first provision of the Constitution sets out the founding
values upon which our constitutional democracy is founded.
These
values include human dignity, the achievement of equality and the
advancement of human rights and freedoms.
88
Our democratic state is therefore committed to the advancement and
protection of fundamental human rights. This commitment
is
immediately apparent in the Bill of Rights, which is the
cornerstone of our constitutional democracy and which affirms
democratic values of human dignity, equality and freedom.
89
In this sense our Constitution must be seen as a promissory note.
Indeed, in peremptory terms, section 7(2) provides that “[t]he

state must respect, protect, promote and fulfil the rights in the
Bill of Rights.”
The commitment to the advancement and protection of fundamental
human rights is also apparent in the ratification of the African

Charter on Human and Peoples’ Rights
90
(African Charter) and the International Convention on Civil and
Political Rights
91
(ICCPR). These international instruments enshrine the fundamental
human rights that are generally to be found in our Constitution.
It is this commitment to the promotion and protection of
fundamental human rights that binds us and defines us as a nation

and which must discipline our government and inform the duty which
it owes to its nationals. This commitment “must be

demonstrated by the State in everything that it does.”
92
It must inform its foreign relations policy. Indeed the principles
that underpin the government’s foreign policy include
a
commitment to the promotion of human rights, democracy, justice and
international law in the conduct of relations between
nations.
93
(b) International human rights instruments
In construing the provisions of the Constitution we are enjoined to
consider, amongst other things, international law. International

law consists, inter alia, of the international human rights
instruments to which the government is a party.
94
These instruments are also relevant to the question whether there
is a constitutional duty to provide diplomatic protection
to
nationals who are abroad. By ratifying the African Charter, the
government “recognises the rights, duties and freedoms

enshrined” in the African Charter,
95
and it assumed the “duty to promote and protect human and
peoples’ rights and freedoms”
96
enshrined in the African Charter. These rights and freedoms include
the right to a fair trial, fair detention and the right
against
torture. Article 7 provides:
“
1.
Every individual shall have the right to have his cause heard. This
comprises: (a) the right to an appeal to competent national
organs
against acts violating his fundamental rights as recognized and
guaranteed by conventions, laws, regulations and customs
in force;
(b) the right to be presumed innocent until proved guilty by a
competent court or tribunal; (c) the right to defence,
including the
right to be defended by counsel of his choice; (d) the right to be
tried within a reasonable time by an impartial
court or tribunal.
2. No one may be condemned for
an act or omission which did not constitute a legally punishable
offence at the time it was committed.
No penalty may be inflicted
for an offence for which no provision was made at the time it was
committed. Punishment is personal
and can be imposed only on the
offender.”
Article 6 provides:
“
Every
individual shall have the right to liberty and to the security of
his person. No one may be deprived of his freedom except
for reasons
and conditions previously laid down by law. In particular, no one
may be arbitrarily arrested or detained.”
And article 5 provides
:
“
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.”
Also, by ratifying the ICCPR, the government recognises that:
“
1.
Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one
shall be
deprived of his liberty except on such grounds and in accordance
with such procedure as are established by law.
2. Anyone who is arrested shall
be informed, at the time of arrest, of the reasons for his arrest
and shall be promptly informed
of any charges against him.
3. Anyone arrested or detained
on a criminal charge shall be brought promptly before a judge or
other officer authorized by law
to exercise judicial power and shall
be entitled to trial within a reasonable time or to release. It
shall not be the general
rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to
appear for trial,
at any other stage of the judicial proceedings,
and, should occasion arise, for execution of the judgement.
4. Anyone who is deprived of
his liberty by arrest or detention shall be entitled to take
proceedings before a court, in order
that court may decide without
delay on the lawfulness of his detention and order his release if
the detention is not lawful.
5. Anyone who has been the
victim of unlawful arrest or detention shall have an enforceable
right to compensation.”
97
And:
“
No
one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”
98
The ratification of the African Charter and the ICCPR are an
unequivocal commitment by the government to the promotion and

protection of fundamental international human rights and to do so
in co-operation with other nations.
99
Indeed ratification of international human rights instruments is a
positive statement by the government to the world and to
South
African nationals that it will act in accordance with these
instruments if any of the fundamental human rights enshrined
in the
international instruments it has ratified are violated. These
international instruments should therefore inform the
government’s
foreign policy. They provide the government with a tool to protect
the internationally recognised human
rights of South African
nationals. What is more, these instruments are binding under our
Constitution.
These international instruments make provision for steps that
member states can take when any of the rights contained therein
are
violated or threatened with violations.
100
Consistent with its commitment to the protection and promotion of
fundamental human rights, the government cannot therefore
remain
silent when a member state commits the most egregious violations of
any of the fundamental human rights enshrined in
these
instruments.
101
It is true that these provisions are permissive in that they
provide that the state “may” take action. That in
my
view does not detract from the obligation to promote and protect
the rights in these instruments, an obligation which the
state has
assumed by ratifying these instruments. I would venture to suggest
that the state is obliged to take some steps when
an egregious
violation of the very fundamental human rights, enshrined in the
document it has ratified, is being committed
by a member state.
Apart from the procedures for the protection of the rights
enshrined in these instruments, there may be other effective means

available to member states to protect human rights. Diplomatic
intervention is another important tool in the protection of

international human rights.
Diplomatic
protection
International human rights instruments such as the ICCPR and the
African Charter are important documents in that they extend

protection to both aliens and nationals in the state parties.
However, the remedies they provide are said to be somewhat weak
and
they are at times slow in providing the remedy.
102
An individual may lodge a complaint with the African Commission
concerning the violation of a fundamental human right guaranteed
in
the African Charter. However, in circumstances where urgent action
is required, the procedure that has to be followed in
processing
the complaint may result in delays. What is more, its powers are to
make recommendation to the offending state.
This points to the
urgent need to establish a court of justice to enforce the rights
guaranteed in the African Charter.
Having regard to this, Dugard submits that diplomatic protection,
albeit only to protect individuals, offers a more effective
remedy.
According to him, states “will treat a claim of diplomatic
protection from another State more seriously than
a complaint
against its conduct to a human rights monitoring body”.
103
Diplomatic protection therefore is an important weapon in the
arsenal of human rights protection. In certain circumstances,
where
urgent action is required, it may prove to be one of the most, if
not the most, effective remedy for the protection of
human rights.
Therefore, states that are committed to the protection and
promotion of international human rights have an important tool at

their disposal to fulfil their commitment. Indeed a growing number
of states now have provisions in their constitutions that
recognise
the right of individuals to have diplomatic protection for injuries
sustained abroad.
104
This reflects a growing recognition within the international
community of the desirability of the need to protect human rights

across the globe. Thus although the United Kingdom does not
recognise the right of individuals to enforce a duty of diplomatic

protection on the crown in the British courts, the recent decision
of the Court of Appeals in the
Abbasi
105
case demonstrates that British nationals can rely on the doctrine
of legitimate expectation to request that they be afforded

diplomatic protection if certain conditions are met.
In the light of the above, there is in my view, a compelling
argument for the proposition that states have, not only a right

but, a legal obligation to protect their nationals abroad against
an egregious violation of their human rights. Those states
that
have ratified international human rights instruments and are
committed to the promotion and protection of international
human
rights have a special duty in this regard. The Special Rapporteur’s
Report concludes:
“
Today
there is general agreement that norms of
jus
cogens
reflect the most fundamental values of the international community
and are therefore most deserving of international protection.
It is
not unreasonable therefore to require a State to react by way of
diplomatic protection to measures taken by a State against
its
nationals which constitute the grave breach of a norm of
jus
cogens
.
If a State party to a human rights convention is required to ensure
to everyone within its jurisdiction effective protection
against
violation of the rights contained in the convention and to provide
adequate means of redress, there is no reason why
a State of
nationality should not be obliged to protect its own national when
his or her most basic human rights are seriously
violated abroad.”
106
This growing trend within the international community of providing
diplomatic protection to nationals abroad is not an irrelevant

consideration in determining whether such a duty exists under our
law. It is particularly relevant for our country given our

commitment to the promotion and protection of fundamental
international human rights and freedoms as evidenced by our
Constitution
and our ratification of international instruments
embodying such commitments. Diplomatic protection provides the
state with
a tool to protect the fundamental human rights that we
have committed ourselves to promoting and protecting.
But the exercise of diplomatic protection invariably implicates
foreign relations.
The conduct of foreign relations
The conduct of foreign relations is a matter which is within the
domain of the executive. The exercise of diplomatic protection
has
an impact on foreign relations. Comity compels states to respect
the sovereignty of one another; no state wants to interfere
in the
domestic affairs of another. The exercise of diplomatic protection
is therefore a sensitive area where both the timing
and the manner
in which the intervention is made are crucial. The state must be
left to assess foreign policy considerations
and it is a better
judge of whether, when and how to intervene. It is therefore
generally accepted that this is a province
of the executive, the
state should generally be afforded a wide discretion in deciding
whether and in what manner to grant
protection in each case and the
judiciary must generally keep away from this area. That is not to
say the judiciary has no
role in the matter.
It is within this context that sections 3(2) and 7(2) of our
Constitution must be construed and understood.
The construction of sections 3(2) and 7(2)
The relevant provisions of section 3 provide:
“
(1)
There is a common South African citizenship.
(2) All citizens are –
(a) equally entitled to the
rights, privileges and benefits of citizenship; and
(b) equally subject to the
duties and responsibilities of citizenship.”
While the relevant provisions of section 7 provide:
“
(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.”
The starting point in the determination of the question whether
there is a duty to provide diplomatic protection is section

3(2)(a). This section provides that all South African citizens are
“equally entitled to the rights, privileges and benefits
of
citizenship”. This provision is the source of the rights,
privileges and benefits of citizenship to which South African

citizens are entitled under our Constitution.
What section 7(2) does on the other hand is to bind the state to
respect, protect, promote and fulfil the rights in the Bill
of
Rights. Here it must be borne in mind that the right to citizenship
is constitutionally entrenched in the Bill of Rights.
107
It is clear from section 3(2)(a) that, in addition to certain
rights, there are benefits and privileges to which South African

citizens are entitled. In this sense, sections 3(2) and 7(2) must
be read together as defining the obligations of the government
in
relation to its citizens.
Section 3(2)(a) therefore confers a right upon every citizen to be
accorded the rights, privileges and benefits of citizenship.
This
provision also makes it clear that citizens should be treated
equally in the provision of rights, privileges and benefits.
This
of course does not mean that citizens may not be treated
differently where there are compelling reasons to do so. For

present purposes, it is not necessary to determine the
circumstances under which the government may treat citizens
differently.
Suffice it to say that any difference in the treatment
will have to conform to the Constitution.
Flowing from this, a citizen has the right under section 3(2)(a) to
require the government to provide him or her with rights,

privileges and benefits of citizenship. The obligation of the
government is to consider rationally such request and decide

whether to grant such request in relation to that citizen. If the
government decides not to grant such request its decision
may be
subject to judicial review. This is so because such a decision is
taken in the exercise of public power and the exercise
of public
power must conform to the Constitution. The question whether the
exercise of public power conforms to the Constitution
must be
determined by the courts.
108
The question that must be considered next is whether the rights,
privileges and benefits comprehended in section 3(2)(a) include
the
right, privilege and benefit to request diplomatic protection.
What are the “rights, privileges and benefits” to
which citizens are entitled?
Some of the rights to which citizens are entitled are spelt out in
the Bill of Rights. These include “the right to enter,
to
remain in and to reside anywhere in, the Republic”,
109
and the “right to a passport”.
110
An important consideration in determining the content of the
rights, privileges and benefits of citizens is that, in
international
law, individuals who are abroad generally have no
right to protect themselves against foreign states. Any protection
that they
enjoy must be found in the municipal law of the foreign
state concerned. In the absence of such protection it is only the
state
of which they are a national that can protect them against
violations of fundamental international human rights. Therefore,

unless the South African government grants South African nationals
abroad diplomatic protection, they are likely to remain without
a
remedy for violations of their internationally recognised human
rights. And if the government cannot protect South African

nationals abroad against violations or threatened violations of
their international human rights, it may well be asked, what
then
are the benefits of being a South African citizen? Or to put it
differently, what are the obligations of the South African

government towards its citizens?
In
De Lange v Smuts NO and Others
,
111
this Court made the following observations concerning the positive
obligation on the government:
“
In a
constitutional democratic State, which ours now certainly is, and
under the rule of law (to the extent that this principle
is not
entirely subsumed under the concept of the constitutional State)
‘citizens as well as non-citizens are entitled
to rely upon
the State for the protection and enforcement of their rights. The
State therefore assumes the obligation of assisting
such persons to
enforce their rights, including the enforcement of their civil
claims against debtors.’”
112
Although these remarks were made in a different context, in my
view, they underscore the positive obligation of the state to

protect the rights of South African citizens. The question which
arises is, does this obligation cease once a South African
citizen
leaves our borders? I think not.
Authors Erasmus and Davidson argue that the right to citizenship
should be interpreted to include entitlement to diplomatic

protection.
113
They contend that the rights, privileges and benefits comprehended
in section 3(2) are open to such a construction. They argue
that
diplomatic protection is a benefit which citizens are equally
entitled to and that this may not be denied arbitrarily
and without
good cause. In support of their thesis they draw attention to the
fact that citizenship is a fundamental human
right which, in terms
of section 7(2), the state “must respect, protect, promote
and fulfil”. There is much to
be said for this view.
The right of citizenship is constitutionally guaranteed.
114
In my view it must be construed purposively so as to give it
content and meaning. As a right contained in the Bill of Rights
it
must be construed, in the light of the object and purpose of the
Bill of Rights which is to protect individual human rights.
It must
therefore be interpreted so as to make its safeguards practical and
effective. Thus construed it seems to me that the
right of
citizenship must comprehend the right of a citizen to request
protection from the government when any of his or her
human rights
are violated or threatened with violation, whether the citizen is
in South Africa or abroad. This right should
vest in all citizens
by virtue of their South African citizenship.
Having regard to the absence of an obligation in international law
to grant diplomatic protection; the commitment of our government
to
promote and protect fundamental human rights; the obligation of the
government, in general, to protect South African citizens
here and
abroad; the fact that citizenship is a constitutionally entrenched
right; the fact that diplomatic protection is one
of the tools
available to protect human rights; and the fact that there is a
growing trend within international law to grant
diplomatic
protection to nationals abroad, I am satisfied that diplomatic
protection is one of the benefits, if not the right,
of
citizenship. For the purposes of this judgment it is not necessary
to decide whether this is a right or a benefit. The effect
is the
same because whether it is a right or a benefit both are
constitutionally guaranteed in section 3(2)(a). This benefit

accrues to South African nationals by virtue of their citizenship.
This benefit is constitutionally entrenched in section 3(2)(a). If
South Africa is required to ensure that everyone within
its borders
enjoys the fundamental human rights contained in the African
Charter and the ICCPR and has adequate means of redress,
there is
no reason why South Africa should not be obliged under our
Constitution to protect its own nationals when their most
basic
human rights are violated or threatened with violation abroad.
I conclude therefore that diplomatic protection is a benefit within
the meaning of section 3(2)(a). It follows therefore that
sections
3(2)(a) and 7(2) must be read together as imposing a constitutional
duty on the government to ensure that all South
African nationals
abroad enjoy the benefits of diplomatic protection.
115
The proposition that the government has no constitutional duty in
this regard must be rejected. Such a proposition is inconsistent

with the government’s own declared policy and acknowledged
constitutional duty.
116
But what is the scope of this constitutional duty? In determining
the scope of this duty it is necessary to bear in mind that
the
exercise of diplomatic protection has an impact on the conduct of
foreign relations. As I have pointed out earlier, the
conduct of
foreign relations is a matter which is within the domain of the
executive. When and how to intervene may be crucial
to the outcome
of the intervention. States are better judges of whether to
intervene and if so, the timing and the manner of
such
intervention. At times there may be compelling reason why there
should be no intervention at all or only at a later stage.
It is
for this reason that states are generally allowed a wide discretion
in deciding whether and in what manner to grant diplomatic

protection.
117
The width of the discretion that the state enjoys in the field of
diplomatic protection is exemplified by two foreign decisions:
the
first is the decision of the German Federal Constitutional Court in
the case of
Rudolph Hess
. The court accepted that Germany
was under a constitutional duty to provide diplomatic protection
but emphasised that the government
enjoyed a “wide
discretion”. The second case is the decision of the English
Court of Appeal in the
Abbasi
case. That court accepted that
under a doctrine of legitimate expectation a British national may
require diplomatic protection.
However, it held that the Foreign
and Commonwealth Office has “discretion whether to exercise
the right, which it undoubtedly
has, to protect British citizens.”
118
The discretion enjoyed by the Foreign Office “is a very wide
one.”
119
In my view, it must therefore be accepted that the government has
discretion in deciding whether to grant diplomatic protection
and
if so, in what manner to grant such protection in each case. It
must be left to the government to assess the foreign policy

considerations in making its decision.
120
However, that does not mean that the whole process is immune from
judicial scrutiny. This must depend on the scope of the duty.
In my view, the duty of the government entails a duty to properly
consider the request for diplomatic protection. The government
must
carefully apply its mind to the request and respond rationally to
it. This would require, amongst other things, the government
to
follow a fair procedure in processing the request and it may be
required to furnish reasons for its decisions. The request
for
diplomatic protection cannot be arbitrarily refused.
The decision whether to extend diplomatic protection in a given
case is the exercise of a public power and as such it must
conform
to the Constitution, in particular section 33 of the Constitution.
Thus where the government were, contrary to its
constitutional
duty, to refuse to consider whether to exercise diplomatic
protection, it would be appropriate for a court to
make a mandatory
order directing the government to give due consideration to the
request.
121
If this amounts to an intrusion into the conduct of foreign policy,
it is an intrusion mandated by the Constitution itself.
122
It now remains to be considered whether on the facts of this case,
the applicants are entitled to any relief in relation to
the
question of a fair trial and the death penalty.
Fair trial
I agree with the Chief Justice that the claim relating to fair
detention and fair trial based on section 35 of the Constitution
is
misconceived and that, as formulated, that claim cannot succeed.
But the applicants have presented evidence of reports about
the
justice system in Equatorial Guinea by reputable international
organisations, including Amnesty International, International
Bar
Association and a Special Rapporteur of the United Nations
Commission on Human Rights. These reports raise serious concerns

about, amongst other things, torture, fairness of trials,
conditions of detention and the independence of the judiciary in

Equatorial Guinea.
In response to these reports the government takes the attitude that
its policy is not to comment or criticise the legal systems
of
other countries “in particular, in the circumstances such as
the present.” No explanation is given for this
statement. The
statement also seems to suggest that the government has not had
adequate time to enable it “to obtain
expert opinion relating
to the legal status of the Republic of Equatorial Guinea”.
But the government also states that
the decision whether or not to
intervene will be made by a responsible authority once the
applicants are extradited to Equatorial
Guinea.
The right to a fair trial is a basic human right to which all those
who are accused of a crime are entitled. The nature of
the crime
charged is irrelevant. It is a fundamental human right enshrined in
both the African Charter and the ICCPR.
123
A South African national who is facing a criminal trial in a
foreign country is entitled to this most basic human right. When

this right is threatened, the South African national affected has a
constitutional right to seek protection from the government
against
such a threat. This right flows from section 3(2)(a) which confers
a right on South African citizens to request diplomatic
protection
against violations of fundamental human rights. The government has
a constitutional duty to grant such protection
unless there are
compelling reasons for not granting it.
The government has a policy regarding nationals facing criminal
trials abroad. Its policy is to ensure that such nationals
get a
fair trial within the framework of the Geneva Convention and
international law. This policy emerges from a statement
by the
Deputy Minister of Foreign Affairs in an interview, a transcript of
which was attached to the papers submitted to this
Court. In
response to the question whether the Deputy Minister was confident
that the applicants would get a fair trial in
Zimbabwe and
Equatorial Guinea, the Deputy Minister responded as follows:
“
Well,
as their government, we have to ensure that all South Africans
citizens, whatever offence they have carried out or are charged

with, must receive fair trial, they must have access to their
lawyers, they must be tried within the framework of the Geneva

Convention, they must be held in prison within the framework of the
Geneva Convention and International Law and we will always,
it is
our constitutional duty to ensure that this is getting out within
the framework of the Geneva Convention and International
law and
that there is a fair trial.”
I should add that in the answering affidavit on behalf of the
government, the response is the following:
“
Without
admitting the correctness of the transcript referred to in this
paragraph, I wish to state that what the Honourable Deputy
Foreign
Affairs Minister is alleged to have stated in the said transcript
reflects the policy of the Republic in the conduct
of foreign
relations with foreign states and confirms what has been stated in
the affidavit of Ntsaluba.”
Dr Ntsaluba in turn states that:
“
On 4
April 2004, the South African Embassy requested permission from the
Zimbabwean ministry of foreign affairs to allow its staff
to attend
the criminal proceedings of the applicants. Permission was given to
staff members to attend the court proceedings.”
According to him, “all the requests by the South African
Embassy to attend court proceedings were granted and the accredited

diplomats from the South African Embassy attended each and every
court proceedings” in Zimbabwe. The applicants do not

seriously dispute these allegations by Dr Ntsaluba. Mr Griebenow who
deposed to a replying affidavit on behalf of the applicants
stated
that it was not necessary for anyone to request permission to attend
the trial and that the South African diplomats did
not attend all
the trials. What Mr Griebenow seems to ignore is that a formal
request from one government addressed to another
government to
attend a criminal trial of a national of the requesting government
is one form of diplomatic intervention. It puts
the requested
government on notice that the requesting state is observing the
trial.
The request by the government for permission to attend the trial
could only have been done with a view to ensuring that the

applicants get a fair trial. What Dr Ntsaluba says is therefore
consistent with the government policy as stated by the Deputy

Minister of Foreign Affairs. In addition, the attendance of trials
by South African diplomats in Zimbabwe is consistent with
this
policy.
The declared policy of the government to ensure that nationals
abroad who face criminal trials get a fair trial within the

framework of fundamental international human rights is consistent
with the government’s constitutional duty under section
3(2).
If the applicants are extradited to Equatorial Guinea, the
government will be expected to act in accordance with this
policy
in fulfilment of its constitutional obligation. There is nothing in
the papers before this Court to show that the government
will not
comply with its policy and its constitutional duty. On the contrary
the indications are that it will. The main deponent
to the
affidavit on behalf of the government, Ms Bezuidenhout, states that
if the applicants are extradited to Equatorial Guinea,
a
responsible government authority will take a decision whether or
not to intervene.
We are dealing here with events that are rapidly evolving. These
papers were prepared in May 2004. We have not been told what
has
been happening since then. In addition, as pointed out earlier, the
government is in a better position to make judgment
as to when to
make a decision whether or not to intervene. It has a wide
discretion in deciding whether, how and when to grant
diplomatic
protection. The government has not made such a decision. It has
taken the attitude that the appropriate time to
make that decision
is when the applicants are extradited to Equatorial Guinea.
I cannot, on this record, hold that this attitude of the government
is in violation of its constitutional duty. More importantly,
there
is nothing on the papers to show that the applicants had previously
requested diplomatic protection against an unfair
trial and
detention and torture. The government has not refused such
protection. It follows therefore that the relief sought
in relation
to an unfair trial and detention and torture is not only
misconceived but is also premature. It must therefore
be dismissed.
The claims relating to the death penalty
Different considerations apply to the claims relating to the death
penalty. As the Chief Justice holds, the death penalty does
not
violate international law. This is so notwithstanding a growing
number of states which have outlawed the death penalty.
However,
that does not mean that a South African national who is facing the
death penalty abroad cannot request diplomatic
protection under
section 3(2)(a).
124
The death penalty is unconstitutional under our Constitution. It
infringes the right to life. Our country is committed to a
society
founded on the recognition of human rights. We must give particular
value to the right to life and this must be demonstrated
in
everything we do. This commitment requires the state to take steps
to protect its nationals against the death penalty. A
South African
who faces the death penalty has a right to request the government
for protection against it. This is one of the
benefits of being a
South African citizen. The government is obliged to consider such a
request properly and to decide whether,
how and when to intervene
on behalf of such national.
The government has a policy in respect of nationals who face the
death penalty. Its policy is to intervene and make representations

once the death penalty is imposed. Dr Ntsaluba states in his
affidavit that:
“
[T]he
Republic would make representations to the executive authorities in
the country concerned not to implement the sentence
of death. The
executive authorities in that country would then consider the
representations made and decide either to implement
the sentence of
death or commute it to some other form of punishment.”
This policy is consistent with the government’s
constitutional duty. It was contended on behalf of the applicants

and the amicus that to wait until the death penalty is imposed
before making representations not to implement the death penalty

will be too late. There is nothing on the record to support this
contention. Similarly, the heavy reliance on the
Mohamed
case is misplaced. That case is distinguishable from the present.
It follows that the claims relating to the death penalty
must also
be dismissed.
The fundamental flaw in the applicants’ case is that it was
premised on the proposition that the government has a

constitutional duty to require Zimbabwe and Equatorial Guinea to
comply with the rights contained in our Bill of Rights. The rights

in the Bill of Rights bind this government and not foreign
governments. Our government cannot require foreign governments to

act in accordance with our Constitution. The applicants
misconceived the nature of their rights and their remedies. I agree

that none of the orders sought by the applicants can be granted.
The applicants did not seek a declarator. The question whether they
are entitled to a declarator was therefore not debated
in this
Court. I therefore consider it sufficient in this case to hold that
under section 3(2)(a) of the Constitution the government
has a
constitutional duty to grant diplomatic protection to nationals
abroad against violations or threatened violations of
fundamental
international human rights. This duty entails an obligation to
consider properly the request for diplomatic protection
with due
regard to the provisions of the Constitution. The government has a
wide discretion in deciding whether, when and in
what manner to
grant such protection. The policy of the government is to grant
such protection. The government says the appropriate
time to
consider whether to grant such protection is when the applicants
are extradited to Equatorial Guinea. In all the circumstances
of
this case I have no reason to believe that the government will not
do what it says it will do. I therefore consider it unnecessary
to
issue a declarator.
In the event, I concur in the order proposed by the Chief Justice.
O’REGAN
J:
I have had the opportunity of reading the judgment prepared by the
Chief Justice in this matter. I agree with his analysis
of section
3 of the Constitution to the extent that he holds that it entitles
citizens to ask government to make representations
and seek
diplomatic protection on their behalf. However, I am in respectful
disagreement with him in relation to the question
whether under our
Constitution, and in the circumstances of the present case, the
state bears an obligation (independent of
a request by its
citizens) to take steps to seek to protect the applicants against
the conduct of other states that may amount
to a fundamental breach
of the human rights of the applicants as recognised in customary
international law
125
and the African Charter on Human and Peoples’ Rights.
The Chief Justice has set out the facts of the case in some detail
and they do not need to be restated at length here. Briefly,
the
applicants were arrested on 7 March 2004 shortly after they had
landed at Harare International Airport in Zimbabwe on a
chartered
flight from South Africa. They have been charged with a variety of
offences relating mainly to the possession of
unlawful firearms and
are currently being held in a prison near Harare. It is alleged by
the applicants that Equatorial Guinea
is seeking to extradite them
from Zimbabwe to face charges in relation to a coup d’état
that, it is alleged, they
were going to launch. The applicants
further allege that there is a real risk that, if extradited to
Equatorial Guinea, their
trial will not be fair and that following
upon an unfair trial, the death penalty will be imposed upon them
by the court there.
That states have the right to provide diplomatic protection to
their nationals is a recognised principle of customary
international
law. The content of the right to provide diplomatic
protection is closely related to the customary international law
principle
of the responsibility of states to avoid acts or
omissions in respect of foreign nationals on their territory that
would constitute
a breach of the state’s international law
obligations.
126
Diplomatic protection has accordingly been defined as
“
the
protection given by a subject of international law to individuals,
i.e. natural or legal persons, against a violation of international

law by another subject of international law.”
127
However, it is also clear that a state has the right to make
representations to other states on behalf of its nationals even
when
there is no established infringement of international law, although
this does not constitute diplomatic protection, but
merely
diplomatic or at times consular representations.
128
The precise content of what may be done pursuant to the right to
provide diplomatic protection is the subject of some debate
by
international lawyers.
129
It is clear that diplomatic protection embraces a range of actions,
including consular action, negotiation, mediation, judicial
and
arbitral proceedings, reprisals and severance of diplomatic
relations.
130
Although international law confers the right upon states to provide
diplomatic protection in respect of their citizens, at
present,
states are not obliged to provide diplomatic protection to their
citizens under international law. As the International
Court of
Justice stated in the
Barcelona Traction
case in 1970:
“
[W]ithin
the limits prescribed by international law, a State may exercise
diplomatic protection by whatever means and whatever
extent it
thinks fit, for it is its own right that the State is asserting.
Should the national or legal persons on whose behalf
it is acting
consider their rights are not adequately protected, they have no
remedy in international law. All they can do is
resort to
international law, if means are available, with a view to furthering
their cause or obtaining redress . . .
The State must be viewed as the
sole judge to decide whether its protection will be granted, to what
extent it is granted, and
when it will cease. It retains in this
respect a discretionary power the exercise of which may be
determined by considerations
of a political or other nature,
unrelated to the particular case.”
131
However, as Professor Dugard, Special Rapporteur to the
International Law Commission on Diplomatic Protection noted in his

first report to the Commission in 2000:
“
Much
has changed in recent years. Standards of justice for individuals at
home and foreigners abroad have undergone major changes.
Some 150
states are today parties to the International Covenant on Civil and
Political rights and/or its regional counterparts
in Europe, the
Americas and Africa, which prescribe standards of justice to be
observed in criminal trials and in the treatment
of prisoners.
Moreover, in some instances the individual is empowered to bring
complaints about the violation of his human rights
to the attention
of international bodies such as the United Nations Human Rights
Committee, the European Court of Human Rights,
the Inter-American
Court of Human Rights or the African Commission on Human and
Peoples’ Rights.”
132
It is indeed true that since 1945 the growth of international human
rights law and principles has been remarkable. But as Professor

Dugard also noted, despite the growth in the number of international
conventions and treaties, the remedies available at international

law to individuals whose human rights are violated or threatened
still remain weak.
133
One of the important mechanisms that can be used to protect and
promote international human rights thus remains the right of
states
to make diplomatic representations on behalf of their nationals to
other states which are threatening to infringe or have
infringed the
internationally recognised human rights of the nationals.
134
There can be no doubt then that at international law, the state is
entitled to take diplomatic steps to protect its nationals
against
the violation of internationally recognised human rights standards.
This entitlement in turn gives rise to two more
difficult
questions: does the state, under our Constitution, bear an
obligation to exercise its international law rights in
respect of
its nationals? And if it does bear such an obligation, in what
circumstances is that obligation justiciable in our
courts? I shall
consider these two questions separately.
Is there a constitutional duty upon the state?
Before considering this question, some preliminary remarks must be
made. First, it must be emphasised that South Africa is
a
constitutional democracy. This has two clear implications: as the
preamble to our Constitution asserts, government should
be based on
the “will of the people”; and secondly, the powers of
government are delineated by the terms of the
Constitution. So, the
powers of all three arms of government arise from and are limited
by the Constitution.
135
All law and conduct inconsistent with the Constitution is invalid.
136
Moreover, our Constitution embodies “an objective, normative
value system”
137
as is asserted in the opening clause of the Constitution which
states that:
“
The
Republic of South Africa is one, sovereign, democratic state founded
on the following values:
(a) Human dignity, the
achievement of equality and the advancement of human rights and
freedoms.
(b) Non-racialism and
non-sexism.
(c) Supremacy of the
constitution and the rule of law.
(d) Universal adult suffrage, a
national common voters roll, regular elections and a multi-party
system of democratic government
to ensure accountability,
responsiveness and openness.”
The conduct of all three arms of government, the legislature,
executive and judiciary must thus be consistent with the
Constitution.
Secondly, the Constitution not only sets a boundary within which
the three arms of government must operate, but it also requires

that the state must “promote and fulfil the rights in the
Bill of Rights”.
138
This constitutional injunction is not surprising in the light of
the history of our country and the purpose of our Constitution.
As
Ngcobo J stated in
Bato Star Fishing (Pty) Ltd v Minister of
Environmental Affairs and Tourism and Others
:
139
“
South
Africa is a country in transition. It is a transition from a society
based on inequality to one based on equality. This
transition was
introduced by the interim Constitution, which was designed ‘to
create a new order based on equality in which
there is equality
between men and women and people of all races so that all citizens
should be able to enjoy and exercise their
fundamental rights and
freedoms’. This commitment to the transformation of our
society was affirmed and reinforced in 1997,
when the Constitution
came into force. The Preamble to the Constitution ‘recognises
the injustices of our past’ and
makes a commitment to
establishing ‘a society based on democratic values, social
justice and fundamental rights’.
This society is to be built
on the foundation of the values entrenched in the very first
provision of the Constitution. These
values include human dignity,
the achievement of equality and the advancement of human rights and
freedoms.”
140
The leitmotif of our Constitution is thus the promotion and
protection of fundamental human rights. Again and again, our

Constitution restates the foundational importance of human rights
to our constitutional vision. In the Preamble, it speaks of
the
need to “heal the divisions of the past and establish a
society based on democratic values, social justice and fundamental

human rights”; in section 1, the founding values clause
quoted above, the Constitution commits us to the “advancement

of human rights and freedoms”; and in section 7(1), the
Constitution asserts that the Bill of Rights is a “cornerstone

of democracy in South Africa.”
Our Constitution thus asserts as a foundational value the need to
protect and promote human rights. This value informs all
the
obligations and powers conferred by the Constitution upon the
state. The importance of that foundational value is to be

understood in the context of a growing international consensus that
the promotion and protection of human rights is part of
the
responsibility of both the global community and individual states,
and that there is a need to take steps to ensure that
those
fundamental human rights recognised in international law are not
infringed or impaired.
Thirdly, our Constitution recognises and asserts that, after
decades of isolation, South Africa is now a member of the community

of nations, and a bearer of obligations and responsibilities in
terms of international law. The Preamble of our Constitution
states
that the Constitution is adopted as the supreme law of the Republic
so as to, amongst other things, “build a united
and
democratic South Africa able to take its rightful place as a
sovereign state in the family of nations.” Customary

international law is law in the Republic unless it is inconsistent
with the Constitution or an Act of Parliament.
141
Courts, when interpreting the Bill of Rights, “must consider
international law”,
142
and, when interpreting legislation, must prefer any reasonable
interpretation consistent with international law over alternative

interpretations that are not.
143
In line with this constitutional acknowledgement of the importance
of both international law and international human rights,
South
Africa has, since 1994, signed and ratified a range of
international human rights conventions including the International

Covenant on Civil and Political Rights (ICCPR),
144
the International Convention on the Elimination of All Forms of
Racial Discrimination,
145
the Convention on the Elimination of All Forms of Discrimination
Against Women,
146
the Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment,
147
the Convention on the Rights of the Child,
148
and the African Charter on Human and Peoples’ Rights.
149
In ratifying these international agreements and conventions, our
government is promoting the protection of human rights in
the
international arena.
I turn now to consider the obligations imposed upon government by
the Constitution. Counsel for the respondent argued that
there
could be no duty imposed upon the government to provide diplomatic
protection to its nationals against the grave infringement
of
international human rights norms because this would constitute the
extraterritorial application of our Bill of Rights. It
is correct
that the relief formulated by the applicants in prayers 6, 7, and 8
does suggest that they were seeking the extraterritorial

application of the Bill of Rights.
150
However, in argument, counsel for both the applicants and the
amicus submitted that the government was under an obligation
to
provide diplomatic protection to its nationals under the
Constitution. Counsel for the applicants conceded that the
formulation
of the relief in the notice of motion may not have
accurately reflected this submission.
The ordinary principle of international law is that jurisdiction of
states is territorial.
151
In
R v Cook
, the Canadian Supreme Court had to consider the
question whether an accused could rely on the provisions of the
Canadian Charter
of Rights and Freedoms in respect of her
interrogation by Canadian law enforcement officials in the United
States. The majority
of the Court concluded (as the Chief Justice
notes in his judgment) as follows:
“
In
our view, the reasoning adopted in both
Harrer
and
Terry
can accommodate a finding that on the jurisdictional basis of
nationality, the
Charter
applies to the actions of
Canadian
law enforcement authorities
on foreign territory (which satisfies s. 32(1), provided that the
application of
Charter
standards would not interfere with the sovereign authority of the
foreign state.”
152
In his judgment, Bastarache J convincingly explains that there is
no threat to the sovereignty of the United States of America
where
the Canadian Charter is held by a Canadian court in Canadian
criminal proceedings to be applicable to the conduct of
Canadian
law enforcement officers interrogating a suspect in the United
States of America.
153
The effect of the Charter, in such circumstances, has no impact
whatsoever on the jurisdiction of the United States.
It is obvious that the Bill of Rights in our Constitution binds the
executive
154
and that the state is under an obligation to “respect,
protect, promote and fulfil the rights in the Bill of Rights.”
155
It is also clear that the provisions of our Bill of Rights are not
binding on the governments or courts of other countries.
So, a
South African may not rely on the provisions of our Bill of Rights
before other courts in other jurisdictions. To this
extent, then,
our Bill of Rights has no direct extraterritorial effect.
It does not follow, however, that when our government acts outside
of South Africa it does so untrammelled by the provisions
of our
Bill of Rights. There is nothing in our Constitution that suggests
that, in so far as it relates to the powers afforded
and the
obligations imposed by the Constitution upon the executive, the
supremacy of the Constitution stops at the borders
of South Africa.
Indeed, the contrary is the case. The executive is bound by the
four corners of the Constitution. It has no
power other than those
that are acknowledged by or flow from the Constitution. It is
accordingly obliged to act consistently
with the obligations
imposed upon it by the Bill of Rights wherever it may act. It is
not necessary to consider in this case
whether the provisions of
the Bill of Rights bind the government in its relationships outside
of South Africa with people who
have no connection with South
Africa.
Were the enforcement of the Bill of Rights against the government
in any particular case to constitute an infringement of
international law, our Constitution would not countenance it. So,
the extraterritorial application of the provisions of the
Bill of
Rights will be limited by the international law principle that the
provisions will only be enforceable against the
government in
circumstances that will not diminish or impede the sovereignty of
another state. The enquiry as to whether the
enforcement will have
this effect will be determined on the facts of each case. As a
general principle, however, our Bill of
Rights binds the government
even when it acts outside South Africa, subject to the
consideration that such application must
not constitute an
infringement of the sovereignty of another state.
This case, however, does not concern a situation where a South
African government official has acted outside of South Africa
in a
manner inconsistent with the provisions of the Bill of Rights. It
concerns the question whether the South African government,
to the
extent that it has the right in international law to make
diplomatic representations to another state on behalf of one
of its
nationals, is under an obligation under our Constitution to make
such representations.
It is quite clear that the right to provide diplomatic protection
in this way does not involve the extraterritorial application
of
our Constitution. International law affords South Africa the right
to provide diplomatic protection to its nationals in
respect of the
breach of the provisions of international law, not our
Constitution. There will of course be some overlap between
the
provisions of our Bill of Rights and the principles of customary
international human rights law and conventional human
rights law.
The international law right to take steps to protect nationals
relates only to breaches of international law. The
question whether
a duty exists under our Constitution to take such steps does not
raise the question of the extraterritorial
effect of our Bill of
Rights at all. I turn now to consider the question whether such a
duty exists under our Constitution.
As the Chief Justice points out, our Constitution contains no
express provision conferring a right to diplomatic protection
from
the state, unlike some other recently adopted constitutions.
156
Nor is there a right to diplomatic protection asserted in the
Universal Declaration of Human Rights, nor in the ICCPR or the

African Charter.
However our Constitution does contain an express recognition of the
rights of citizenship. Section 3 of the Constitution provides
that:
“
(1)
There is a common South African citizenship.
(2) All citizens are –
(a) equally entitled to the
rights, privileges and benefits of citizenship; and
(b) equally subject to the
duties and responsibilities of citizenship.
(3) National legislation must
provide for the acquisition, loss and restoration of citizenship.”
Section 3 thus confers an entitlement to the “rights,
privileges and benefits of citizenship” upon South African

citizens. What are the rights, privileges and benefits of
citizenship? This question needs to be answered in the context of
the other provisions of the Constitution.
As to the “rights of citizens”, certain provisions of
the Bill of Rights expressly confer rights upon citizens.
So
citizens are given the right to make political choices (which
includes the right to form political parties, to participate
in the
activities of political parties, to free, fair and regular
elections and the right to vote and stand for public office);
157
the right not to be deprived of citizenship;
158
the right to enter, remain in and reside anywhere in South Africa;
159
the right to a passport;
160
and the right to choose their trade, occupation or profession
freely.
161
These fall within the concept of the rights of citizenship as
contemplated in section 3.
There are no explicit provisions in the Constitution that give
content to the “privileges and benefits” of
citizenship.
We must start from an assumption that citizens do
enjoy some privileges and benefits in addition to the rights
conferred by
the Constitution, for otherwise the reference to
“privileges and benefits” in section 3 would be
meaningless. Moreover,
in giving meaning to the words, it is
important to bear in mind both the constitutional recognition of
the importance of the
international sphere and international law,
as well as the priority given to the promotion and protection of
human rights in
our Constitution. We should also bear in mind the
importance of the role of the state, under our constitutional
democracy,
in the protection of human rights. As Ackermann J stated
in
De Lange v Smuts NO and Others
:
162
“
In a
constitutional democratic state, which ours now certainly is, and
under the rule of law (to the extent that this principle
is not
entirely subsumed under the concept of the constitutional State)
citizens as well as non-citizens are entitled to rely
upon the State
for the protection and enforcement of their rights.”
163
The state is entitled to make diplomatic representations on behalf
of its nationals under international law, even though at

international law it is not obliged to do so. When it does so, the
state clearly confers a privilege or benefit upon the person

concerned. In my view, when section 3 speaks of the “privileges
and benefits” of citizenship it includes within
it the right
of the state to make diplomatic representations on their behalf to
protect them against a breach of international
law. It is true that
historically international law has taken the view that in making
such diplomatic representations, the
state acts in defence of its
own interests, not in the interests of its nationals, who are not
“subjects” of international
law.
164
However, it is increasingly being recognised that this is a fiction
in the sense that the primary beneficiaries of diplomatic

representations made by the state are those nationals in respect of
whom the state makes representations.
165
This has recently been acknowledged by the South African government
in its representations to the International Court of Justice.
166
Given that it is widely accepted that the right to diplomatic
protection does serve the interests of individuals, it seems

appropriate to consider the provision of diplomatic protection by
the state to fall within the “privileges and benefits”

of citizenship as contemplated by section 3.
What then does section 3 mean when it states that a citizen is
“equally entitled to the . . . privileges and benefits
of
citizenship”? It is quite clear that it means in the first
place that the state may not act in respect of some citizens
and
not others, the state must treat citizens
equally
. However,
the question that arises is whether the subsection imposes an
obligation upon government to provide diplomatic protection
to its
citizens when it would be entitled to do so in terms of
international law in the light of my conclusion that the provision

of diplomatic protection constitutes a privilege or benefit of
citizenship. In other words, are citizens
entitled
to
diplomatic protection, in itself, or merely entitled to
equal
protection
of it, which otherwise may be refused by the state,
as long as it refuses it equally? The latter interpretation of
course may
add little to the protection of the equality clause in
section 9 of the Constitution,
167
but that does not seem to me to be the most powerful interpretative
concern. The question has to be answered in the light of
the
normative commitment to human rights emphasised in our
Constitution, the importance accorded to international law and
human rights in our Constitution and the conception of democratic
government that underlies our Constitution. Most importantly,
our
Constitution must be interpreted in a way that will promote rather
than hinder the achievement of the protection of human
rights.
In the light of these constitutional imperatives, government would
not be constitutionally permitted simply to ignore a citizen
who is
threatened with or has experienced an egregious violation of human
rights norms at the hands of another state. Were
government to be
entitled to do so, the achievement of human rights would be
obstructed and international human rights norms
undermined.
Accordingly, and in the light of my understanding of the values of
our Constitution, I would conclude that it is
proper to understand
section 3 as imposing upon government an obligation to provide
diplomatic protection to its citizens to
prevent or repair
egregious breaches of international human rights norms. Where a
citizen faces or has experienced a breach
of international human
rights norms that falls short of the standard of egregiousness, the
situation may well be different.
Thus, I conclude that to the
extent that section 3(2) states then that “citizens are
equally entitled to the . . . privileges
and benefits” of
citizenship, it is not only an entitlement to
equal
treatment in respect of the privilege and benefit of diplomatic
protection, but also an entitlement to diplomatic protection

itself.
One final problem needs to be addressed. It might be thought that
it would be inappropriate to interpret section 3 in this
way given
that the state’s right to make representations relates to its
nationals
as contemplated by international law, while
section 3 speaks of
citizens
. The relationship between
citizenship and nationality is often confused. Nationality is a
term of international law. It is
nationals who may be entitled to
the protection of their state and to various other benefits under
international law.
168
It is generally accepted that there must be a “genuine link”
between state and individual if conferral of nationality
is to be
recognised at international law.
169
By contrast, citizenship is a concept of municipal law and concerns
the rights and the obligations between citizens and the
state at a
domestic level. Its effect is internal.
170
Problems arise only where the nationality of persons is contested
by states on the international plane, at which point, the

international law on “nationality” becomes decisive.
171
However, when applying the international law test of “genuine
link”, it is important to note that there is a presumption
of
validity of an act of naturalisation, and that the conferment of
nationality as a status is not to be invalidated except
in very
clear cases.
172
Article I of the 1930 Hague Convention on the Conflict of
Nationality Laws provides:
“
It is
for each State to determine under its own law who are its nationals.
This law shall be recognised by other States in so
far as it is
consistent with international conventions, international custom, and
the principles of law generally recognised
with regard to
nationality.”
In practice, save where a state’s claim that persons are its
nationals is contested in an international forum, a state’s

citizens are its nationals, as international law generally leaves it
to states to determine who their nationals are.
173
For the purposes of this case, there is nothing to suggest that the
applicants, who are all South African citizens, are not also
South
African nationals.
In my view, therefore, to the extent that section 3 entitles
citizens to the privileges and benefits of citizenship, this
obliges the state to provide diplomatic protection to citizens at
least in circumstances where citizens are threatened with
or have
experienced the egregious violation of international human rights
norms binding on the foreign state that caused or
threatened to
cause the violation. It is interesting that this conclusion of law
is echoed in the statement made by the Deputy
Minister of Foreign
Affairs in an interview with a journalist on 11 May 2004, a
transcript of which was made available to the
Court. In response to
questions concerning the likelihood that the applicants would
receive a fair trial in Zimbabwe and Equatorial
Guinea, the Deputy
Minister responded as follows:
“
As
their government, we have to ensure that all South African citizens,
whatever offence they have carried out or are charged
with, must
receive a fair trial, they must have access to their lawyers, they
must be tried within the framework of the Geneva
Convention and
International law and we will always,
it
is our constitutional duty
to ensure that this is getting out within the framework of the
Geneva Convention and that there is a fair trial”. (own

emphasis)
Such a statement, of course, cannot be constitutive of the meaning
of the Constitution, which remains a matter for this Court.
It must
also be noted that in this Court counsel for the respondents firmly
resisted the proposition that the respondents bore
any
constitutional duty that would require them to provide diplomatic
protection to the applicants. The legal submissions of
counsel must
of course be taken to represent the attitude of their clients, the
respondents in the case. The question that now
needs to be
considered is the question of the extent to which that obligation is
justiciable.
The justiciability of the duty to make diplomatic representations
The obligation to provide citizens with diplomatic protection
conferred by our Constitution is one that must be construed within

the terrain in which it is operative. That terrain is the conduct
of foreign relations by the South African government. It
is clear,
though perhaps not explicit, that under our Constitution the
conduct of foreign affairs is primarily the responsibility
of the
executive. That this is so, is signified by a variety of
constitutional provisions including those that state that the

President is responsible for receiving and recognising foreign
diplomatic and consular representatives,
174
appointing ambassadors, plenipotentiaries and diplomatic and
consular representatives,
175
and that the national executive is responsible for negotiating and
signing international agreements.
176
The conduct of foreign relations is therefore typically an
executive power under our Constitution. This is hardly surprising.

Under most, if not all constitutional democracies, the power to
conduct foreign affairs is one that is appropriately and ordinarily

conferred upon the executive,
177
for the executive is the arm of government best placed to conduct
foreign affairs.
It is clear from the existing jurisprudence of this Court that all
exercise of public power is to some extent justiciable under
our
Constitution,
178
but the precise scope of the justiciability will depend on a range
of factors including the nature of the power being exercised.
179
Given that the duty to provide diplomatic protection can only be
fulfilled by government in the conduct of foreign relations,
the
executive must be afforded considerable latitude to determine how
best the duty should be carried out.
Like other powers of the executive, the power must be exercised
lawfully and rationally.
180
It may be subject to other requirements as well, but in any
proceedings in which the exercise of the power is challenged, a

court will bear in mind that foreign relations is a sphere of
government reserved by our Constitution for the executive and
it
will accordingly “be careful not to attribute to itself
superior wisdom”
181
in relation to it.
Similar considerations obtain in Germany where the Federal
Government is under a constitutional duty to provide diplomatic

protection to German nationals and their interests in relation to
foreign states. In giving effect to this duty, the Court
has been
at pains to acknowledge the importance of recognising that the
conduct of foreign policy is primarily the constitutional
task of
the executive. In the leading case of
Rudolf Hess
, the
applicant asked the Court, amongst other things, to compel the
Federal Government (a) to take all possible initiatives
to persuade
the four occupying powers to grant his immediate release; and (b)
to refer the complainant’s case to the
International Court of
Justice for an order declaring that his continued imprisonment was
in breach of the United Nations Charter.
The Constitutional Court,
whilst acknowledging that there was a constitutional duty on the
government, dismissed his application
for relief. The Court held
that:
“
[I]n
the sphere of foreign policy, the Federal government, as all other
organs with responsibility for political dealings, generally
has
more room for political manoeuvre and consequently wider discretion.
The scope of discretion in the
foreign policy sphere is based on the fact that the shape of foreign
relations and the course of
their development are not determined
solely by the wishes of the Federal Republic of Germany and are much
more dependent upon
circumstances beyond its control. In order to
enable current political objectives of the Federal Republic of
Germany to be achieved
within the framework of what is permissible
under international and constitutional law, the Federal Basic Law
(
GG
) grants to the organs of foreign affairs wide room for
manoeuvre in the assessment of foreign policy issues as well as the
consideration
of the necessity for possible courses of action.”
182
The Court continued:
“
The
Federal Government has maintained . . . that it has already
undertaken the necessary steps to obtain the release of the

Complainant, whose detention is a matter beyond its control. The
Federal Government also wishes to continue to undertake further

similar initiatives with the Occupying Powers. In so doing it is
clearly aware of the Complainant’s personal situation
and the
nature of his constitutional rights which are at issue . . . . The
mere fact that the steps hitherto taken by the Federal
Government
have failed to produce the Complainant’s release is certainly
not, of itself, sufficient to give rise to a duty
under
constitutional law for the Federal Government to take specific
further measures of possibly greater scope and consequence.
It must
be left to the Government to assess the foreign policy
considerations in order to decide how far other measures are
appropriate and necessary, bearing in mind the Complainant’s
interests as well as the interests of the community as a whole.”
183
The approach adopted by the German Constitutional Court in this
regard seems correct. In enforcing the obligation of the state
to
provide diplomatic representations, a court will pay due regard to
the sensitivities of the conduct of foreign affairs and
not presume
knowledge and expertise that it does not have, nor substitute its
opinion for the rational and lawful opinion of
the government in
respect of how best the obligation should be honoured.
The reliance on Mohamed’s
case
Before I turn to the facts of this case, I wish to deal with one
further issue. The applicants relied upon the judgment of
this
Court in
Mohamed and Another v President of the RSA and Others
184
and argued that the facts of this case were no different to the
facts of that case. In
Mohamed
, South African officials had
colluded with officials from the United States of America to remove
Mr Mohamed from South Africa
and take him to the United States
where he was wanted on charges of terrorism. No extradition
proceedings were launched, and
the court found that Mr Mohamed was
not lawfully deported to the United States. After he had arrived in
the United States,
he launched urgent proceedings in the South
African courts seeking a declaratory order that the conduct of the
South African
officials had been unlawful and in conflict with the
Bill of Rights, and mandatory relief requiring the government
urgently
to intercede on his behalf with the authorities in the
United States.
This Court held that the government was ordinarily under an
obligation 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.
185
It also held that the procedure by which Mr Mohamed had been
removed from South Africa was unlawful. The Court made a
declaratory
order to these effects, and instructed that it be
brought to the attention of the court in which Mr Mohamed was being
tried
in the United States.
In this case, the applicants submitted that they had been
apprehended in Zimbabwe as a result of information passed to the

Zimbabwean authorities by South African law enforcement officials.
Although this was disputed on the papers, we were informed
from the
Bar by the respondents’ counsel that it was admitted by them
that an exchange of information had occurred between
South African
and Zimbabwean authorities. Given that the applicants were arrested
immediately upon landing it seems likely,
and I am prepared to
assume in favour of the applicants, that their arrest in Zimbabwe
did result from this exchange of information.
The applicants further argued that the conduct of the South African
officials in informing the Zimbabwean authorities of the
imminent
arrival of the applicants was conduct sufficient to give rise to an
obligation upon the South African government to
seek assurances
from the other jurisdictions to which they were proffering
information that the death penalty would not be
imposed upon the
applicants. This obligation, it was submitted, like the obligation
in
Mohamed,
arose from the action of government officials.
The Chief Justice rejects this argument and distinguishes
Mohamed
on the basis that the action of the state officials in that case
had been unlawful and wrongful. He points to the fact that
the
exchange of information in this case is lawful, and indeed, a
failure to pass information of a suspected coup to another
state
might constitute a breach of South Africa’s international law
obligations. Accordingly, the Chief Justice concludes
that as the
state officials had not acted unlawfully or wrongfully, the
reasoning in
Mohamed
was not relevant.
In my respectful opinion, this is not a valid basis upon which to
distinguish that case. On my reading of
Mohamed
, it is clear
that the Court would have held that there was an obligation upon
the state to seek assurances that the death penalty
would not be
imposed or, if imposed, not carried out even were the extradition
to have been otherwise lawful. This conclusion,
it seems to me
follows from passages such as the following in the judgment:
“
It
[The Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment] 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 our Constitution demands
from our
government in circumstances such as those that existed in the
present case.”
186
Nor on my reading of
Mohamed
, can the facts in that case and
this be distinguished on the basis that all the relevant facts took
place in South Africa,
for as in the case at hand, the application
to this Court was only made after Mr Mohamed had arrived in the
United States.
Nor can the facts be distinguished on the ground
that the applicants left voluntarily, for in
Mohamed
too,
the Court was willing to accept that Mr Mohamed had consented to
his removal from South Africa.
In my view, there is a ground for distinguishing
Mohamed
from the present case, but it is not based on the lawfulness or
otherwise of the conduct of state officials. It is based on
the
different types of state conduct in issue. When a state takes steps
to deport or extradite a person to another country,
it is an
appropriate and practical time for the state to seek assurances to
prevent the imposition or execution of the death
penalty. On the
other hand, when law enforcement officials exchange information
about potential criminal conduct, it is not
an appropriate time to
seek such assurances. The need for the exchange of such information
in our rapidly globalising world
is indisputable. Without the
timely exchange of information between different law enforcement
agencies, international crime
such as terrorism, drug trafficking,
money laundering, crimes against humanity and unlawful mercenary
activities will flourish.
This has been recognised by the
international community and a range of conventions and bilateral
treaties have been adopted
to foster such co-operation.
187
Were an obligation of the sort argued for by the applicants to be
imposed upon South African government officials every time
they
engaged in such co-operative endeavours, the co-operative
endeavours themselves might severely be hampered if not stalled

entirely. The same cannot be said of imposing such obligations in
respect of extradition or deportation. It is not necessary
to
decide in this case what legal consequences may flow from such
co-operation were it to be established that it was undertaken
mala
fide or for an unconstitutional purpose. There is no suggestion
that that was the case here.
In my view, therefore, the facts of this case can be distinguished
from the facts in
Mohamed
and the applicants’
submissions in respect of that case must fail.
Application to facts of this case and the prayers for relief
sought by the applicants
In this case, I agree with the Chief Justice’s reasoning in
paragraphs 82-95, that the applicants have not made out a
case to
compel government at this stage to institute proceedings to
extradite them from Zimbabwe to South Africa, or to obtain
the
release of the applicants by Zimbabwe.
188
Extradition only becomes possible when it is clear that a prima
facie case on a criminal charge has been established against
those
whom the government wishes to extradite. On the papers before us,
the prosecuting authority indicates that it has not
completed its
investigations, and accordingly the prayers of the applicants
compelling government to seek to extradite them
cannot succeed. Nor
is it clear at this stage (particularly given that it is not clear
what offences, if any, the applicants
would be charged with in
South Africa) that the double criminality principle would be met.
189
Prayers 4 and 5 of the notice of motion read as follows:
“
4.
Directing and ordering the Government to seek an assurance as a
matter of extreme urgency from the Zimbabwean Government that
the
applicants will not be released or extradited to Equatorial Guinea.
5. Directing and ordering the
Government to seek assurance as a matter of extreme urgency from the
Zimbabwean and Equatorial Guinea
Governments, as the case may be, to
not impose the death penalty on the applicants.”
190
It is clear that at international law the state is only entitled to
institute diplomatic protection on behalf of its nationals
when
internationally recognised human rights norms have been infringed.
As the Chief Justice makes clear in his judgment (at para 98), at
this stage of the development of international law, capital

punishment is not inconsistent with the principles of international
law. Accordingly, the applicants cannot make out a claim
based on
the state’s obligation to provide them with diplomatic
protection that the South African government should seek
assurances
from the Zimbabwean and Equatorial Guinean governments in respect
of the death penalty. To the extent that the applicants
have a
right to request government to make diplomatic representations on
its behalf under section 3 of our Constitution, short
of diplomatic
protection, I agree with the reasoning of the Chief Justice (at
paras 110-113) that the applicants have not established
a basis for
the grant of prayers 4 and 5.
I also agree with the Chief Justice that prayers 6, 7 and 8 to the
extent that they require the state to take steps to require
another
state to apply the provisions of our Constitution are not competent
prayers. Concluding that the applicants are not
entitled to relief
on these prayers as formulated, however, is not the end of the
enquiry.
I have found that section 3 of the Constitution read in the light
of the other provisions of our Constitution imposes an obligation

upon government to take appropriate steps to provide diplomatic
protection to its citizens who are threatened with or who have

experienced egregious violations of international human rights
norms by a foreign state upon whom the international rights
norms
are binding.
Article 5 of the African Charter on Human and Peoples’ Rights
provides that:
“
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.”
And Article 7 of the same Charter provides:
“
1.
Every individual shall have the right to have his cause heard. This
comprises:
(a) the right to an appeal to
competent national organs against acts violating his fundamental
rights as recognised and guaranteed
by conventions, laws,
regulations and customs in force;
(b) the right to be presumed
innocent until proven guilty by a competent court or tribunal;
(c) the right to defence,
including the right to be defended by counsel of his choice;
(d) the right to be tried
within a reasonable time by an impartial court or tribunal.”
South Africa, Zimbabwe and Equatorial Guinea have all ratified the
African Charter.
191
They are all therefore bound by its provisions.
Article 7 of the International Covenant on Civil and Political
Rights provides that:
“
No
one shall be subjected to torture or to cruel, inhuman or degrading
treatment or punishment.”
And Article 9 provides that:
“
1.
Everyone has the right to liberty and security of person. No one
shall be subjected to arbitrary arrest or detention. No one
shall be
deprived of his liberty except on such grounds and in accordance
with such procedures as are established by law.
2. Anyone who is arrested shall
be informed, at the time of arrest, of the reasons for his arrest
and shall be promptly informed
of any charges against him.
3. Anyone arrested or detained
on a criminal charge shall be brought promptly before a judge or
other officer authorized by law
to exercise judicial power and shall
be entitled to trial within a reasonable time or to release. It
shall not be the general
rule that persons awaiting trial shall be
detained in custody, but release may be subject to guarantees to
appear for trial,
at any other stage of the judicial proceedings,
and, should occasion arise, for execution of the judgment.”
And Article 10 that:
“
1.
All persons deprived of their liberty shall be treated with humanity
and with respect for the inherent dignity of the human
person.
2. (a) Accused persons shall,
save in exceptional circumstances, be segregated from convicted
persons and shall be subject to
separate treatment appropriate to
their status as unconvicted persons.”
South Africa, Zimbabwe and Equatorial Guinea have also all ratified
this convention
192
and all are accordingly also bound by these provisions. Moreover, it
is clear that the right of an accused person to a fair trial
is a
fundamental international human rights norm
193
that forms part of customary international law.
The European Court of Human Rights has recently held that it is a
breach of customary international law where accused persons
who
face the possibility of the imposition of the death penalty are
prosecuted in proceedings that fall short of the requirement
of a
fair trial.
194
As we do not know what charges the applicants will face in
Equatorial Guinea, it is not necessarily the case that such a

breach of customary international law may arise. It is however a
consideration that renders the need for diplomatic protection
for
the applicants more acute.
The Chief Justice has set out in his judgment in some detail at
paras 116-121, the information that has been placed before
this
Court concerning the criminal justice system in Equatorial Guinea.
I agree with him that this information originating
as it does from
well-respected international agencies concerned with the protection
and promotion of human rights raises serious
concerns about the
criminal justice system in Equatorial Guinea and the question
whether the applicants, should they be extradited
to Equatorial
Guinea, would face a fair trial in that country.
The respondents’ response to that evidence is that it
constitutes the “opinion” of the agencies concerned,

that it is not sufficient to “prove” the inadequacies
of the criminal justice system in Equatorial Guinea and further

that it is not the government’s policy to comment on the
criminal justice systems of other countries. In argument before
us
the government persisted in this position, and argued that it was
under no constitutional obligation to provide diplomatic
protection
to the applicants either at present, or if they face trial in
Equatorial Guinea.
Although it is quite clear that the consideration and assessment of
another country’s criminal justice system is a sensitive

matter for our government, the demands of comity and sensitivity
should not mean that government remains blind to the risk
of
egregious violation of human rights of its nationals by other
jurisdictions. It is not only its constitutional obligation
to take
appropriate steps to provide diplomatic protection to its nationals
that requires government to consider this matter,
but the
developing global and regional commitment to the protection of
human rights also requires government to be responsive
to these
issues. It is not satisfactory therefore for government merely to
say that it is not its policy to comment on the
criminal justice
system of other countries.
195
Counsel for the respondents did make it clear during argument that
government was taking some steps in relation to this matter.

However, no details of these steps were provided. In argument
before this Court, and despite the contrary statement of the
Deputy
Minister of Foreign Affairs to the media,
196
counsel for the respondents continued to assert that government was
under no constitutional obligation to take any steps on
behalf of
the applicants.
I also do not agree, with respect, that the application is
premature in relation to the relief sought in respect of Equatorial

Guinea. It is not disputed on the papers that Equatorial Guinea has
sought the extradition of the applicants, though the charges
that
they will face in Equatorial Guinea, if they are extradited there,
are not clear at this stage. In my view, the extradition

application gives rise to an appreciable risk that the applicants
will be extradited to Equatorial Guinea, sufficient to give
rise to
an obligation upon the state to provide diplomatic protection. In
the light of the constitutional obligation imposed
upon government,
and in the light of the range of evidence put before the Court to
suggest that there may be a real risk that
the applicants, if
extradited to Equatorial Guinea might not receive a fair trial, and
may then face the death sentence, there
is a clear obligation upon
government to take some appropriate steps to provide diplomatic
protection to the applicants. It
is not for this Court to determine
what the appropriate steps should be, that is, at least in the
first place, a matter for
government.
In my view, the appropriate relief would therefore be that a
declaratory order be made by this Court with regard to the

obligations of government. I am satisfied that declaratory relief
is appropriate as the central issues argued in this Court were
the
question whether government bore such an obligation; and if it did
so, the scope of its obligation and its justiciability.
A
declaratory order would assist government by delineating the
constitutional obligation that exists. It would not, however,
be
appropriate for mandatory relief to be ordered, at this stage, as
government is already taking steps to protect the applicants,
and
it is best placed to determine what steps should be taken to
provide appropriate protection to the applicants in the

circumstances.
In conclusion, it should be stated that there can be no doubt that
it is important that South African law enforcement agencies

co-operate with the law enforcement agencies of other states to
prevent the commission of crime and to facilitate the detection
and
effective prosecution of crime. Included within this injunction
must be the obligation upon our government to take steps
to
minimise the threats that mercenary activity often presents to the
independence, sovereignty and security of other governments.

Nothing in this judgment suggests otherwise. However, in carrying
out these tasks, it is imperative that internationally recognised

human rights norms must not suffer. As part of a growing global
commitment to the protection and promotion of fundamental human

rights, our Constitution requires government to take appropriate
steps to protect citizens who face the infringement of such
norms.
That obligation is an important one that reaffirms the primacy of
human rights in our constitutional order, and the
principle of
constitutional democracy in South Africa.
I would propose therefore that a declaratory order in the following
terms be made:
It is declared that the First to Sixth Respondents are under a
constitutional obligation to take appropriate steps to provide

diplomatic protection to the applicants to seek to prevent the
egregious violation of international human rights norms.
Mokgoro J concurs in the judgment of O’Regan J.
SACHS J:
Section 198(b) of the Constitution makes it clear that one of the
principles governing national security is:
“
The
resolve to live in peace and harmony precludes any South African
citizen from participating in armed conflict, nationally
or
internationally, except as provided for in terms of the Constitution
or national legislation.”
Mercenary activities aimed at producing regime-change through
military coups violate this principle in a most profound way. As
the
main judgment trenchantly establishes, the government is under a
duty to act resolutely to combat them, the more so if they
are
hatched on South African soil.
At the same time, section 199(5) provides that:
“
The
security services must act, and must teach and require their members
to act, in accordance with the Constitution and the law,
including
customary international law and international agreements binding on
the Republic.”
This section emphasises that in dealing with even the most serious
threats to the state, a noble end does not justify the use
of base
means. On the contrary, as I stated in
S v Basson
197
“
none
of the above should be taken as suggesting that because war crimes
might be involved, the rights to a fair trial of the respondent
as
constitutionally protected are in any way attenuated. When
allegations of such serious nature are at issue, and where the

exemplary value of constitutionalism as against lawlessness is the
very issue at stake, it is particularly important that the
judicial
and prosecutorial functions be undertaken with rigorous and
principled respect for basic constitutional rights. The
effective
prosecution of war crimes and the rights of the accused to a fair
trial are not antagonistic concepts. On the contrary,
both stem from
the same constitutional and humanitarian foundation, namely the need
to uphold the rule of law and the basic principles
of human dignity,
equality and freedom.”
198
The values of our Constitution and the human rights principles
enshrined in international law are mutually reinforcing,

interrelated and, where they overlap, indivisible. South Africa
owes much of its very existence to the rejection of apartheid
by
the organised international community and the latter’s
concern for the upholding of fundamental human rights. It would
be
a strange interpretation of our Constitution that suggested that
adherence by the government in any of its activities to
the
foundational norms that paved the way to its creation was merely an
option and not a duty.
I believe that the main judgment, with which I agree, as well as
the two complementary judgments all underline the importance
and
correctness of the acceptance by the government of its
constitutional obligations in the present matter. In my view, in

their basic outline the judgments of Ngcobo J and O’Regan J
are compatible with and give added texture to the principal

judgment of Chaskalson CJ. I do not think that the present matter
calls for a definitive position on all the doctrinal nuances
of
Mohamed.
199
Nor do I believe that a declarator concerning the government’s
obligations is required. Subject to keeping an open mind
on
Mohamed
, I accordingly concur in the principal judgment, and
with the order it makes. I also agree with the additional points of
substance
made in the two separate judgments. In my opinion, the
government has a clear and unambiguous duty to do whatever is
reasonably
within its power to prevent South Africans abroad,
however grave their alleged offences, from being subjected to
torture, grossly
unfair trials and capital punishment. At the same
time, the government must have an extremely wide discretion as to
how best
to provide what diplomatic protection it can offer.
For the applicants: Z. F. Joubert SC, B. J. Pienaar and T. Price
instructed by Griebenow Attorneys.
For the respondents: I. A. M. Semenya SC, I. V. Maleka SC, M. Mphaga
and E. Mokutu instructed by the State Attorney (Pretoria).
For the amicus curiae: W. Trengove SC, A. Katz and M. du Plessis
instructed by the Society for the Abolition of the Death Penalty.
1
Details
of the charges are referred to in para 12 below. In the High Court
there were 70 applicants, but on 5 July 2004, Simon
Francis Mann,
the sixty-ninth applicant in the High Court, lodged a notice of
withdrawal from the proceedings in this Court.
2
Member
of the Executive Council for Development Planning and Local
Government, Gauteng v Democratic Party and Others
[1998] ZACC 9
;
1998 (4) SA
1157
(CC);
1998 (7) BCLR 855
(CC) at para 32.
3
Barcelona
Traction Light and Power Company Limited
1970
ICJ Reports 3; 46 ILR 178.
4
Id
at paras 78-9.
5
Report
of the International Law Commission on the work of its fifty-second
session
, 1 May to 9 June and 10 July to 18 August (2000) A/55/10
(ILC report). The full report of the Special
Rapporteur is published as a General Assembly document, A/CN.4/506
(Special Rapporteur’s
report).
6
Special
Rapporteur’s report a
bove n 5 at 11.
7
Dunn
The Protection of Nationals: A Study in the Application of
International Law
(Johns Hopkins Press, Baltimore 1932) at 18.
8
ILC
report above n 5 at 146.
9
Special
Rapporteur’s report above n 5 at
15.
10
Above
n 3.
11
See
Carmichele v Minister of Safety and Security and Another (Centre
for Applied Legal Studies intervening)
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 44;
Mohamed and Another v
President of the Republic of South Africa and Others (Society for
the Abolition of the Death Penalty in
South Africa and Another
intervening)
[2001] ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC) at
para 37;
Government of the Republic of South Africa and Others v
Grootboom and Others
2001 (1) SA 46
(CC);
2000 (11) BCLR 1169
(CC) at para 20;
S v Baloyi (Minister of Justice and Another
intervening)
[1999] ZACC 19
;
2000 (2) SA 425
(CC);
2000 (1) BCLR 86
(CC) at para
11.
12
See
para 44 below.
13
African
Charter on Human and Peoples’ Rights adopted by the
Organisation of African Unity at the 18
th
Conference of
Heads of State and Government on 27 June 1981, Nairobi, Kenya. Entry
into force: 21 October 1986.
14
International
Covenant on Civil and Political Rights adopted and opened for
signature, ratification and accession by the General
Assembly of the
United Nations, resolution 2200 (XXI) of 16 December 1966. Entry
into force: 23 March 1976.
15
1996
(2) SA 751 (CC); 1996 (4) BCLR 449 (CC).
16
Id
at para 106.
17
Cf
Du Plessis and Others v De Klerk and Another
[1996] ZACC 10
;
1996 (3) SA 850
(CC);
1996 (5) BCLR 658
(CC) at para 45.
18
Brownlie
Principles of Public International Law
6 ed (Oxford
University Press, Oxford 2003) at 287 and 289.
19
Dugard
International Law: A South African Perspective
2 ed (Juta,
Cape Town 2000) at 133.
20
Island
of Palmas Case (Netherlands v United States)
2 RIAA 829 (1928)
at 838.
21
The
Case of the S.S. Lotus (France v Turkey)
(1927)
PCIJ Series A, No. 10.
22
Id
at paras 18-19.
23
Brownlie
above n 18 at 301.
24
Shaw
International Law
4 ed (Cambridge University Press, Cambridge
1997) at 460-1.
25
Id
at 461.
26
[1998]
2 SCR 597.
27
Id
at para 26.
28
Id
at para 46.
29
Id
at para 91.
30
Id
at para 124.
31
Where
there are formal agreements or informal acts of cooperation between
states which sanction the one state’s exercise
of jurisdiction
in the territory of the other, questions of sovereignty do not arise
and thus nationals affected by their state’s
action in a
foreign territory may conceivably invoke the protection of their
Constitution – See in this regard the case
of
Reid v Covert
354 US 1
(1957).
32
The
difficulties are illustrated by decisions in a number of Canadian
cases in which different approaches have been adopted by
the judges
dealing with them. See for instance,
R
v Cook
above n 26 and the cases there
referred to.
33
Mohamed
above n 11.
34
Id
at para 60.
35
Id
at para 70.
36
Id
at para 71 (footnote omitted).
37
Id
at para 62.
38
Id
at para 67.
39
See
para 90 below.
40
United
States v Burns
2001 SCC 7
;
[2001] 1 SCR 283
at
para 72.
41
“
There
can be no doubt that the actions undertaken by the Government of
Canada in extradition as in other matters are subject to
scrutiny
under the Charter (s. 32). Equally, though, there cannot be any
doubt that the Charter does not govern the actions of
a foreign
country; see, for example,
Spencer
v The Queen
[1985]
2 SCR 278.
In particular the Charter cannot be given
extraterritorial effect to govern how criminal proceedings in a
foreign country are
to be conducted.” –
Canada
v Schmidt
[1987] 1
SCR 500
at 518.
42
“
When
an American citizen commits a crime in a foreign country he cannot
complain if required to submit to such modes of trial
and to such
punishment as the laws of that country may prescribe for its own
people, unless a different mode be provided for
by treaty
stipulations between that country and the United States.” –
Neely v Henkel (No.
1)
[1901] USSC 21
;
180 US 109
(1901) at 123 cited with approval in
Canada
v Schmidt
above n
41 at 525.
43
Erasmus
& Davidson “Do South Africans have a right to diplomatic
protection?” (2000) 25
SA Yearbook of International Law
113.
44
Id
at 116 where the authors refer to a decision of a mixed claims
commission between the United States and Germany where it was

pointed out that there would be no action unless the injured
national requests the state to act on its behalf –
Administrative Decision No 5 (United States v Germany)
(1924)
7 RIAA 119 as cited by Harris
Cases and Materials on
International Law
5 ed (Sweet & Maxwell, London 1998) at
521.
45
South
African Citizenship Act 88 of 1995
.
46
Nottebohm
Case (Liechtenstein v Guatemala)
22 ILR 349 at 360.
47
The
Special Rapporteur’s report (above n 5 at 12-13) highlights
the controversy regarding the question of whose rights are
asserted
when a state exercises diplomatic protection on behalf of its
national. Erasmus & Davidson also discuss this issue
in their
article (above n 43 at 116-7). I
n recent
proceedings before the ICJ, South Africa adopted the attitude that
the true beneficiary of the right asserted is the
individual. In its
written submissions to the Court, South Africa outlined its position
as follows: “the
locus
of [international] human rights vests in the
individual and not the Government” and the individual is “the
beneficiary
of at least a core of human rights and the protection so
afforded”. See page 22 of the written submissions submitted by
the Government of the Republic of South Africa on 30 January 2004 to
the ICJ in the matter of the request by the United Nations
General
Assembly for an Advisory Opinion on the legal consequences of the
wall being built by Israel.
48
Fedsure
Life Assurance Ltd and Others v Greater Johannesburg Transitional
Metropolitan Council and Others
[1998] ZACC 17
;
1999 (1) SA 374
(CC);
1998 (12)
BCLR 1458
(CC) at para 56.
49
See
para 70 below.
50
Special
Rapporteur’s report above n 5 at 32.
51
ILC
report above n 5
at 156.
52
Hess
decision BVerfGE 55, 349; 90 ILR 386 where the Federal
Constitutional Court held that “the Federal Government enjoys
wide
discretion in deciding the question of whether and in what
manner to grant protection against foreign States” – at

395.
53
Id
at 396.
54
Abbasi
and Another v Secretary of State for Foreign and Commonwealth
Affairs and Another
[2002] EWCA Civ 1598.
55
Id
at para 106 iv-v.
56
President
of the Republic of South Africa and Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at para 13.
57
President
of the Republic of South Africa and Others v South African Rugby
Football Union and Others
2000 (1) SA
1
(CC);
1999 (10) BCLR 1059
(CC) at para 38.
58
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA
674
(CC);
2000 (3) BCLR 241
(CC) at para 90.
59
Section
179(1)(a)
read with section 179(2) of the Constitution.
60
Section
179(6) of the Constitution.
61
Section
179(4) of the Constitution.
62
Act
3 of 2000.
63
Id
section 1(b)(ff).
64
As
to the position prior to the Promotion of Administrative Justice
Act, see:
Gillingham v Attorney-General and Others
1909 TS
572
;
Wronsky en ‘n Ander v Prokureur-Generaal
1971 (3)
SA 292
(SWA);
Highstead Entertainment (Pty) Ltd v Minister of Law
and Order
1994 (1) SA 387
(C) at 394H where it is said that
courts would be slow to interfere with such decisions. This is
similar to the approach taken
in the United Kingdom where courts
have held that there is a power to review a decision not to
prosecute, but it is a power that
has to be “sparingly
exercised” -
R v Director of Public Prosecutions, ex parte
C
[1995] 1 Cr. App. R. 136 at 140.
65
Act
15 of 1998.
66
Id.
As defined in paragraph (c) of the definition of foreign military
assistance in section 1.
67
Section
16 of the Zimbabwe Extradition Act provides:
“
(1) Subject to section
twenty-four, a request for extradition to a designated country in
terms of this Part shall be submitted
through channels to the
Minister and shall be accompanied by-
(a) a warrant for the arrest of the person concerned
specifying and giving particulars of the offence in respect of which
his
extradition is sought; and
(b) such evidence as would establish a
prima facie
case in a court of law in Zimbabwe that the person concerned has
committed or has been convicted of the offence concerned in
the
designated country:
Provided that, if the order declaring the country
concerned to be a designated country in terms of section thirteen so
provides,
the request may be accompanied by a record of the case in
respect of the offence concerned, containing the particulars and
documents
referred to in subsection (2), and accompanied by-
(i) an affidavit, sworn statement or affirmation of an
officer of the investigating authority of the designated country
stating
that the record was prepared by him or under his direction
and that the evidence referred to therein has been preserved for use

in court; and
(ii) a certificate of the Attorney-General of the
designated country stating that, in his opinion, the record
discloses the existence
of evidence under the law of the designated
country sufficient to justify a prosecution”.
68
As
defined in paragraph (b) of the definition of foreign military
assistance in section 1 of Act 15 of 1998.
69
Section
14 of the Zimbabwe Extradition Act provides:
“
(1) Subject to this Act, a
person may be arrested, detained and extradited from Zimbabwe to a
designated country in the manner
provided for in this Part, for an
offence in respect of which in the designated country he is accused
or has been convicted and
is required to be sentenced or to undergo
punishment, whether the offence was committed before or after the
declaration of the
country concerned as a designated country.
(2) This Part shall apply to any offence which-
(a) is punishable in the law of the designated country
concerned by imprisonment for a period of twelve months or by any
more
severe punishment; and
(b) would constitute an offence punishable in Zimbabwe
if the act or omission constituting the offence took place in
Zimbabwe
or, in the case of an extra-territorial offence, in
corresponding circumstances outside Zimbabwe.”
70
S
v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC).
71
See
the discussion of this in
Mohamed
above n 11 at para 39 and
Burns
above n 40 at paras 85-92.
72
See
above para 57.
73
Above
n 11.
74
See
above paras 46-57.
75
Above
n 5 at 147.
76
See
International Tobacco Co (SA) Ltd v United Tobacco Cos (South)
Ltd
1953 (3) SA 343
(W) at 346B.
77
Above
n 41.
78
Above
n 42.
79
In
the case of
Öcalan v Turkey
Application 46221/99, 12
March 2003, the European Court of Human Rights held the following at
para 207:
“
[T]o impose a death sentence
on a person after an unfair trial is to subject that person
wrongfully to the fear that he will be
executed. The fear and
uncertainty as to the future generated by a sentence of death, in
circumstances where there exists a real
possibility that the
sentence will be enforced, must give rise to a significant degree of
human anguish. Such anguish cannot
be dissociated from the
unfairness of the proceedings underlying the sentence”.
80
Above
n 52.
81
Id
at 395.
82
The
International Law Commission has described diplomatic protection to
mean “action taken by a State against another State
in respect
of an injury to the person or property of a national caused by an
internationally wrongful act or omission attributable
to the latter
State” (see article 1 of the draft articles contained in the
“First
report on diplomatic protection”
by John R Dugard, Special Rapporteur, 7 March 2000, published as a
General Assembly document,
A/CN.4/506 at 11 (Special Rapporteur’s
Report)
). The
Encyclopaedia of Public International Law
gives a substantially similar definition of diplomatic protection
and defines it as “the protection given by a subject
of
international law to individuals, i.e. natural or legal persons,
against a violation of international law by another subject
of
international law” (Dugard at 14, citing Geck “Diplomatic
Protection”
Encyclopaedia of Public International Law
(1992) at 1046). For the purpose of this judgment I will use the
term diplomatic protection to refer to the diplomatic intervention

by a state to protect its nationals against a violation or
threatened violation of the internationally recognised human rights

of its nationals.
83
Countries
that have constitutionalised the duty to provide diplomatic
protection include Albania, Belarus, Bosnia and Herzegovina,

Bulgaria, Cambodia, China, Croatia, Estonia, Georgia, Guyana,
Hungary, Italy, Kazakhstan, Lao People’s Democratic Republic,

Latvia, Lithuania, Poland, Portugal, Republic of Korea, Romania,
Russian Federation, Spain, the former Yugoslav Republic of
Macedonia, Turkey, Ukraine, Vietnam and Yugoslavia. The
Special
Rapporteur’s Report above n 1 at 30.
84
Barcelona
Traction Light and Power Company Limited
1970 ICJ Reports 3; 46
ILR 178 at paras 78-9.
85
See
paras 174-179 for further discussion of these sections.
86
S
v Makwanyane
and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6)
BCLR 665
(CC) at para 262.
87
Preamble
to the Constitution. See also
Bato Star Fishing (Pty) Ltd v
Minister of Environmental Affairs and Tourism and Others
[2004] ZACC 15
;
2004
(7) BCLR 687
(CC) at para 73:
“
South Africa is a country in
transition. It is a transition from a society based on inequality to
one based on equality. This
transition was introduced by the interim
Constitution, which was designed ‘to create a new order based
on equality in which
there is equality between men and women and
people of all races so that all citizens should be able to enjoy and
exercise their
fundamental rights and freedoms.’ This
commitment to the transformation of our society was affirmed and
reinforced in 1997,
when the Constitution came into force. The
Preamble to the Constitution ‘recognises the injustices of our
past’ and
makes a commitment to establishing ‘a society
based on democratic values, social justice and fundamental rights’.
This society is to be built on the foundation of the values
entrenched in the very first provision of the Constitution. These

values include human dignity, the achievement of equality and the
advancement of human rights and freedoms.”
88
Section
1(a) of the Constitution.
89
Section
7(1) states: “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.”
90
African
[Banjul] Charter on Human and Peoples’ Rights, adopted June
27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21
International Legal
Materials
58 (1982), entered into force 21 October 1986.
91
International
Covenant on Civil and Political Rights, G.A.res. 2200A (XXI), 21
U.N.GAOR Supp. (No 16) at 52, U.N. Doc. A/6316
(1966), 999 U.N.T.S.
171, entered into force on 23 March 1976.
92
Above
n 86 at para 144.
93
See
paras 198-202 and 207-208 which discuss state policy.
94
See
para 223 in the judgment of O’Regan J.
95
Article
1 of the African Charter states that: “The Member States of
the Organization of African Unity parties to the present
Charter
shall recognise the rights, duties and freedoms enshrined in this
Chapter and shall undertake to adopt legislative or
other measures
to give effect to them.” Zimbabwe and Equatorial Guinea have
also ratified the African Charter.
96
Id
at Preamble.
97
Above
n 91 article 9.
98
Id
article 7.
99
Zimbabwe
did not ratify the ICCPR but there was an accession on 31 August
1991. Equatorial Guinea also submitted to an accession
on 25
December 1987. Zimbabwe ratified the African Charter on 30 May 1986
and Equatorial Guinea ratified it on 7 April 1986.
100
Thus
under the African Charter, the government is entitled to take action
against another state party where it has reason to believe
that that
State has violated a provision of the African Charter. Article 47
provides:
“
If a State party to the
present Charter has good reasons to believe that another State party
to his Charter has violated the provisions
of the Charter, it may
draw, by written communication, the attention of the State to the
matter. This communication shall also
be addressed to the Secretary
General of the OAU and to the Chairman of the Commission. Within
three months of the receipt of
the communication, the State to which
the communication is addressed shall give the enquiring State,
written explanation or statement
elucidating the matter. This should
include as much as possible relevant information relating to the
laws and rules of procedure
applied and applicable, and the redress
already given or course of action available.”
Article 49 provides:
“
Notwithstanding the
provisions of 47, if a State party to the present Charter considers
that another State party has violated
the provisions of the Charter,
it may refer the matter directly to the Commission by addressing a
communication to the Chairman,
to the Secretary General of the
Organization of African Unity and the State concerned.”
101
Written
Statement Submitted by the Government of the Republic of South
Africa, on 30 January 2004, to the International Court
of Justice in
the matter of the request by the United Nations General Assembly for
an Advisory Opinion on the legal consequences
of the construction of
a wall in the occupied Palestinian territory.
102
See
the Special Rapporteur’s Report above n 1 at 10.
103
Id
(footnote omitted).
104
Special
Rapporteur’s Report above n 1 at 30.
105
Abbasi
and Another v Secretary of State for Foreign and Commonwealth
Affairs and Another
[2002] EWCA Civ 1598.
106
Above
n 1 at 33 (footnotes omitted).
107
Section
20 provides: “No citizen may be deprived of citizenship.”
108
Pharmaceutical
Manufacturers Association of SA and Another: In re Ex parte
President of the Republic of South Africa and Others
[2000] ZACC 1
;
2000 (2) SA
674
(CC);
2000 (3) BCLR 241
(CC) at para 51.
109
Section
21(3).
110
Section
21(4).
111
[1998] ZACC 6
;
1998
(3) SA 785
(CC);
1998 (7) BCLR 779
(CC).
112
Id
at para 31.
113
Erasmus
& Davidson “Do South Africans have a right to diplomatic
protection?” (2000) 25
SA Yearbook of International Law
113.
114
See
above n 26.
115
See
in general
Hopkins “Diplomatic Protection
and The South African Constitution: Does a South African citizen
have an enforceable constitutional
claim against the government?”
(2001) 16
SA Journal of Public Law
387.
116
See
paras 198-204.
117
Hess
decision BVerfGE 55, 349; 90 ILR 386 at 395.
118
Above
n 24 at para 106(iii).
119
Id
120
Hess
above n 36.
121
Above
n 24 at para 104.
122
Minister
of Health and Others v Treatment Action Campaign and Others (No 2)
[2002] ZACC 15
;
2002 (5) SA 721
(CC);
2002 (10) BCLR 1075
(CC) at para 99.
123
Above
paras 160-161.
124
Above
paras 174-179.
125
Customary
international law constitutes those binding rules of international
law which are “evidence of a general practice
[of states]
accepted as law”. (Article 38 of the Statute of the
International Court of Justice). See the discussion in
Brownlie
Principles of Public International Law
6 ed (Oxford
University Press, Oxford 2003) at 6-12.
126
See
First Report of the Special Rapporteur on Diplomatic Protection to
the International Commission of Jurists,
International Law
Commission, 52
nd
Session, 2000
(A/CN.4.506) at paras 33-34.
127
Geck
“Diplomatic Protection” in
Encyclopaedia of Public
International Law
(1992) at 1046, cited in the First Report of
the Special Rapporteur on Diplomatic Protection above n 2 at para
38.
128
See
the distinction drawn by Warbrick between diplomatic
representations, on the one hand, and diplomatic protection, on the
other in “Diplomatic Representations and Diplomatic
Protection” (2002) 51
International and Comparative Law
Quarterly
723 at 724-5. See also article 5 of the Vienna
Convention on Consular Relations which lists consular functions.
129
See
the discussion in the First Report of the Special Rapporteur on
Diplomatic Protection, above n 2 at paras 41 ff.
130
See
Dunn
The Protection of Nationals: A Study in the Application of
International Law
(Johns Hopkins Press, Baltimore 1932) at
18-20.
131
Barcelona
Traction, Light and Power Company Limited
Case
46 ILR 178
at paras 78-9.
132
Above
n 2 at para 15.
133
Id
at para 31. Perhaps the most effective international law remedies
for the protection of international human rights norms are
provided
by regional human rights courts. A Protocol to the African Charter
on Human and Peoples’ Rights establishing an
African Court on
Human and Peoples’ Rights entered into force on 25 January
2004 after receiving sufficient ratifications.
The Court should,
thus, be established shortly.
134
At
least one commentator expressly states that diplomatic protection
may be instituted in the face of the threatened infringement
of
human rights. See Dunn above n 6 at 18 where he states that
“[Diplomatic protection] embraces generally all cases of

official representation by one government on behalf of its citizens
of their property interests within the jurisdiction of another,
for
the purpose, either of preventing some threatened injury in
violation of international law, or of obtaining redress for such

injuries after they have been sustained.”
135
See,
for example,
President of the Republic of South Africa and
Another v Hugo
[1997] ZACC 4
;
1997 (4) SA 1
(CC);
1997 (6) BCLR 708
(CC) at
paras 8-10, in which the Court held that the prerogative powers
under previous constitutions were now those enumerated
in our new
Constitution;
Pharmaceutical Manufacturers Association of South
Africa: In re Ex parte the President of the RSA
[2000] ZACC 1
;
2000 (2) SA 674
(CC);
2000 (3) BCLR 241
(CC) at para 19.
136
Section
2 of the Constitution.
137
Carmichele
v Minister of Safety and Security and Another
[2001] ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 54.
138
Section
7(2) of the Constitution.
139
[2004] ZACC 15
;
2004
(7) BCLR 687
(CC) at para 73.
140
See
also the judgment of Mahomed J in
S v Makwanyane and Another
[1995] ZACC 3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) at para 262.
141
Section
232 of the Constitution.
142
Section
39(1)(b) of the Constitution.
143
Section
233 of the Constitution.
144
Ratified
on 10 December 1998.
145
Ratified
on 10 December 1998.
146
Ratified
on 15 December 1995.
147
Ratified
on 10 December 1998.
148
Ratified
on 16 June 1995.
149
Ratified
on 9 July 1996.
150
These
prayers sought the following:
“
6. Directing and ordering the
Government to ensure as far as is reasonably possible, that the
dignity of the applicants as guaranteed
in section 9 of the
Constitution of South Africa (the Constitution) are at all times
respected and protected in Zimbabwe or Equatorial
Guinea, as the
case may be.
7. Directing and ordering the Government to ensure as
far as is reasonably possible, that the applicants’ right to
freedom
and security of person including the rights not to be
subjected to torture or cruel, inhuman or degrading treatment or
punishment,
as guaranteed in section 12 of the Constitution, are at
all times respected and protected in Zimbabwe or Equatorial Guinea,
as
the case may be.
8. Directing and ordering the Government to ensure as
far as is reasonably possible, that the applicants’ right to
fair
detention and fair trial as guaranteed in section 35 of the
Constitution are at all times respected and protected in Zimbabwe or

Equatorial Guinea, as the case may be.”
151
See,
for example,
The Case of the S. S. Lotus
(1927) PCIJ Ser A,
no 10 in which the International Court of Justice stated that:
“
Now the first and foremost
restriction imposed by international law upon a State is that –
failing the existence of a permissive
rule to the contrary –
it may not exercise its power in any form in the territory of
another State. In this sense jurisdiction
is certainly territorial;
it cannot be exercised by a State outside its territory except by
virtue of a permissive rule derived
from international custom or
convention. It does not, however, follow that international law
prohibits a State from exercising
jurisdiction in its own territory,
in respect of any case which relates to acts which have taken place
abroad, and in which it
cannot rely on some permissive rule of
international law.”
152
[1998]
2 SCR 597
at para 46.
153
At
paras 142-144 of his judgment.
154
Section
8(1).
155
Section
7(2) of the Constitution.
156
See
for example article 69(3) of the Hungarian Constitution which
provides that: “Every Hungarian citizen is entitled to
enjoy
the protection of the Republic of Hungary, during his/her legal
staying abroad”, as cited in Lee
Consular Law and Practice
2 ed (Oxford University Press, Oxford 1991) at 125. The Special
Rapporteur on Diplomatic Protection to the ICJ also mentions
the
Constitutions of Albania, Belarus, Bosnia and Herzegovina, Bulgaria,
Cambodia, China, Croatia, Estonia, Georgia, Guyana,
Italy,
Kazakhstan, Lao People’s Democratic Republic, Latvia,
Lithuania, Poland, Portugal, Republic of Korea, Turkey, Ukraine,

Vietnam and Yugoslavia. See First Report on Diplomatic Protection
above n 2 at para 80.
157
Section
19.
158
Section
20.
159
Section
21(3).
160
Section
21(4).
161
Section
22.
162
[1998] ZACC 6
;
1998
(3) SA 785
(CC);
1998 (7) BCLR 779
(CC).
163
Id
at para 31. See also
Carmichele v Minister of Safety and Security
and Another (Centre for Applied Legal Studies intervening)
[2001] ZACC 22
;
2001
(4) SA 938
(CC);
2001 (10) BCLR 995
(CC) at para 44.
164
See,
for example, the classic reasoning in the
Mavromattis Palestine
Concession (Jurisdiction) Case
, PCIJ Reports, series A, no 2, at
12 where the International Court of Justice reasoned as follows:
“
By taking up the case of one
of its subjects and by resorting to diplomatic action or
international judicial proceedings on his
behalf, a State is in
reality asserting its own rights – its right to ensure, in the
person of its subjects, respect for
the rules of international law.”
This traditional view has its origins in the writings
of Vattel in the 18
th
century. See Vattel
The Law of
Nations
(1758) chap VI at 136. However, see the more
contemporary reasoning of the Umpire in the
Mixed Claims
Commission
between the US and Germany quoted by Erasmus and
Davidson in “Do South Africans have a right to diplomatic
protection?”
2000 (25)
SA Yearbook of International Law
113 at 119.
165
See
the discussion in the First Report of the Special Rapporteur on
Diplomatic Protection above n 2 at paras 18-19.
166
See
the Written Statement submitted by the Government of the Republic of
South Africa to the International Court of Justice on
30 January
2004 in respect of the request of the United Nations General
Assembly for an advisory opinion on the legal consequences
of the
construction of a wall by Israel in the occupied Palestinian
territory.
167
Section
9 provides that:
“
(1) Everyone is equal before
the law and has the right to equal protection and benefit of the
law.
(2) Equality includes the full and equal enjoyment of
all rights and freedoms. To promote the achievement of equality,
legislative
and other measures designed to promote or advance
persons, or categories of persons, disadvantaged by unfair
discrimination may
be taken.
(3) The state may not unfairly discriminate directly or
indirectly against anyone on one or more grounds, including race,
gender,
sex, pregnancy, marital status, ethnic or social origin,
colour, sexual orientation, age, disability, religion, conscience,
belief,
culture, language and birth.
(4) No person may unfairly discriminate directly or
indirectly against anyone on one or more grounds in terms of
subsection (3).
(5) Discrimination on one or more of the grounds listed
in subsection (3) is unfair unless it is established that the
discrimination
is fair.”
168
Shaw
International Law
4 ed (Cambridge University Press, Cambridge
1997) at 462-463.
169
Brownlie
above n 1 at 388. See also the
Nottebohm
Case
(Liechtenstein
v. Guatemala)
1955
ICJ 4
, which dealt with the issue of fraudulent naturalisation.
170
Dugard
International Law: A South African Perspective
2 ed (Juta,
Cape Town 2000) at 209.
171
Iran-United
States Case
No. A/18 (1984-1) 5 Iran-USCTR 251, Iran-United
States Claims Tribunal discussed in Aldrich
The Jurisprudence of
the Iran-United States Tribunal
(Clarendon Press, Oxford 1996)
at 56-7. The issue was whether the Tribunal had jurisdiction over
claims against Iran by persons
who were, under US law, citizens of
the US and who were, under Iranian law, citizens of the Islamic
Republic of Iran. The Tribunal
held that it did have jurisdiction
where the dominant and effective nationality of the claimant during
the relevant period was
that of the United States. For further
discussion of the case, see Dixon & McCorquodale
Cases and
Materials on International Law
4 ed (Oxford University Press,
New York 2003) at 423.
172
Brownlie
above n 1 at 388.
173
Shaw
above n 44 at 463.
174
Section
84(2)(h).
175
Section
84(2)(i).
176
Section
231(1).
177
See,
for example, article 32 of the German Basic Law; article 73(2) of
the Constitution of Japan; and article 29.4 of the Irish

Constitution. In many countries, the foreign policy power arises
from the prerogative and is therefore not expressly set out
in the
Constitution. This is so in the United Kingdom, see de Smith
Constitutional and Administrative Law
5 ed (Penguin Books,
Middlesex 1985) at 151.
178
See
Hugo
above n 11;
President of the Republic of South Africa
and Others v South African Rugby Football Union and Others (3)
2000 (1) SA 1
(CC);
1999 (10) BCLR 1059
(CC);
Pharmaceutical
Manufacturers
above n 11.
179
Id
SARFU
at para 143.
180
See
Pharmaceutical Manufacturers
above n 11 at paras 20 and 90.
181
Bato
Star
above n 15 at para 48.
182
See
Rudolf Hess
case (Case No 2 BvR 419/80) reported in 90 ILR
386 at 395-396.
183
Id.
See also the
Cruise Missile
case 66BVerfGE 30 (1983).
184
[2001] ZACC 18
;
2001
(3) SA 893
(CC);
2001 (7) BCLR 685
(CC).
185
Id
at para 42.
186
Id
at para 59. See also para 63 where the Court reasoned as follows:
“
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.”
187
See,
for example, the United Nations Convention against Illicit Traffic
in Narcotic Drugs and Psychotropic Substances, 1988, article
9(1) of
which provides that:
“
The Parties shall co-operate
closely with one another, consistent with their respective domestic
legal and administrative systems,
with a view to enhancing the
effectiveness of law enforcement action to suppress the commission
of offences established in accordance
with article 3, paragraph 1.
They shall, in particular, on the basis of bilateral or multilateral
agreements or arrangements:
a) Establish and maintain channels of communication
between their competent agencies and services to facilitate the
secure and
rapid exchange of information concerning all aspects of
offences established in accordance with article 3, paragraph 1,
including,
if the Parties concerned deem it appropriate, links with
other criminal activities;
b) Co-operate with one another in conducting enquiries,
with respect to offences . . . having an international character . .
.;
c) In appropriate cases and if not contrary to domestic
law, establish joint teams, taking into account the need to protect
the
security of persons and of operations, to carry out the
provisions of this paragraph . . .;
d) Provide, when appropriate, necessary quantities of
substances for analytical or investigative purposes;
e) Facilitate effective co-ordination between their
competent agencies and services and promote the exchange of
personnel and
other experts, including the posting of liaison
officers.”
See also article 10 of the Convention for the
Suppression of Unlawful Seizure of Aircraft, 1970.
188
This
relief was sought in prayers 2 and 3 of the notice of motion as
follows:
“
2. Directing and ordering the
Government of the Republic of South Africa (“the Government”)
to take all reasonable
and necessary steps as a matter of extreme
urgency, to seek the release and/or extradition of the applicants
from the Governments
of Zimbabwe and/or Equatorial Guinea, as the
case may be, to South Africa.
3. Declaring that the Government of the Republic of
South Africa (“the Government”) is, as a matter of law,
entitled
to request the release and/or extradition of the applicants
from the Governments of Zimbabwe and/or Equatorial Guinea, as the
case may be, to South Africa.”
189
Section
14 of the Revised Edition of the Extradition Act of 1996 (Zimbabwe)
makes it a requirement that extradition may not take
place unless
the offence for which the person is extradited is an offence both
under Zimbabwean law and under the law of the
extraditing country.
190
At
the hearing, applicants’ counsel asked for the relief sought
in paragraph 4 of the notice of motion to be modified. The

reformulated relief is set out in the judgment of the Chief Justice
at para 109. The reformulation of the relief does not affect
the
reasoning in these paragraphs.
191
South
Africa signed and ratified the Charter on 9 July 1996; Zimbabwe
signed the Charter on 20 February 1986 and ratified it on
30 May
1986; and Equatorial Guinea signed the Charter on 18 August 1986 and
ratified it on 7 April 1986.
192
Equatorial
Guinea ratified the Covenant on 25 December 1987; Zimbabwe ratified
it on 13 August 1991 and South Africa ratified
it on 10 March 1999.
193
Article
10 of the Universal Declaration of Human Rights provides that:
“Everyone is entitled in full equality to a fair
and public
hearing by an independent and impartial tribunal, in the
determination of his rights and obligations and of any criminal

charge against him.”
194
See,
Öcalan v Turkey
Application 46221/99, 12 March 2003, in
which the European Court on Human Rights held at para 207 that:
“
[T]o impose the death
sentence on a person after an unfair trial is to subject that person
wrongfully to the fear that he will
be executed. The fear and
uncertainty as to the future generated by a sentence of death, in
circumstances where there exists
a real possibility that the
sentence will be enforced, must give rise to a significant degree of
human anguish. Such anguish
cannot be dissociated from the
unfairness of the proceedings underlying the sentence. . .”
195
It
is true that the attitude of the respondents as set out in the
answering affidavits is different to the attitude taken by the

Deputy Minister of Foreign Affairs in the television interview
referred to in para 242 above.
196
Id
197
S
v Basson
[2004] ZACC 13
;
2004 (6) BCLR 620
(CC).
198
Id
at para 128.
199
Mohamed
and Another v President of the Republic of South Africa and Others
[2001] ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC).