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[2012] ZACC 16
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Minister of Home Affairs and Others v Tsebe and Others, Minister of Justice and Constitutional Development and Another v Tsebe and Others (CCT 110/11, CCT 126/11) [2012] ZACC 16; 2012 (5) SA 467 (CC); 2012 (10) BCLR 1017 (CC) (27 July 2012)

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CONSTITUTIONAL COURT OF SOUTH AFRICA
Case CCT 110/11
[2012] ZACC 16
In the matter between:
MINISTER OF HOME AFFAIRS
…...........................................................
First
Applicant
DIRECTOR-GENERAL, DEPARTMENT OF
HOME AFFAIRS
….................................................................................
Second
Applicant
GEORGE MASANABO, ACTING DIRECTOR OF
DEPORTATIONS
…...................................................................................
Third
Applicant
ANN MOHUBE, ACTING DEPUTY DIRECTOR
LINDELA HOLDING FACILITY
….......................................................
Fourth
Applicant
JOSEPH SWARTLAND, ASSISTANT DIRECTOR
LINDELA HOLDING FACILITY
…..........................................................
Fifth
Applicant
and
EMMANUEL TSEBE
…...........................................................................
First
Respondent
JERRY OFENSE PITSOE (PHALE)
…...............................................
Second
Respondent
SOCIETY FOR THE ABOLITION OF THE DEATH
PENALTY IN SOUTH AFRICA
…........................................................
Third
Respondent
BOSASA (PTY) LTD T/A LEADING PROSPECTS
TRADING
…..........................................................................................
Fourth
Respondent
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
….................................................................................
Fifth
Respondent
MINISTER OF INTERNATIONAL RELATIONS
AND CO-OPERATION
….......................................................................
Sixth
Respondent
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
…......
Seventh Respondent
and
AMNESTY INTERNATIONAL
…..............................................................
Amicus
Curiae
and
Case CCT 126/11
[2012] ZACC 16
In the matter between:
MINISTER OF JUSTICE AND CONSTITUTIONAL
DEVELOPMENT
….....................................................................................
First
Applicant
GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA
…...........
Second
Applicant
and
EMMANUEL TSEBE
…...........................................................................
First
Respondent
JERRY OFENSE PITSOE (PHALE)
…...............................................
Second
Respondent
SOCIETY FOR THE ABOLITION OF THE DEATH
PENALTY IN SOUTH AFRICA
…........................................................
Third
Respondent
MINISTER OF HOME AFFAIRS
….....................................................
Fourth
Respondent
DIRECTOR-GENERAL, DEPARTMENT OF
HOME AFFAIRS
…..................................................................................
Fifth
Respondent
GEORGE MASANABO, ACTING DIRECTOR OF
DEPORTATIONS
…................................................................................
Sixth
Respondent
ANN MOHUBE, ACTING DEPUTY DIRECTOR
LINDELA HOLDING FACILITY
…..................................................
Seventh
Respondent
JOSEPH SWARTLAND, ASSISTANT DIRECTOR
LINDELA HOLDING FACILITY
…....................................................
Eighth
Respondent
BOSASA (PTY) LIMITED T/A LEADING PROSPECTS
TRADING
…............................................................................................
Ninth
Respondent
MINISTER OF INTERNATIONAL RELATIONS
AND CO-OPERATION
…......................................................................
Tenth
Respondent
and
AMNESTY INTERNATIONAL
…..............................................................
Amicus
Curiae
Heard on : 23 February 2012
Decided on : 27 July 2012
JUDGMENT
ZONDO AJ (Mogoeng CJ, Cameron J (except for [55], [56] and [60] to
[62]), Froneman J (except for [55], [56] and [60] to [62]),
Jafta J,
Khampepe J, Maya AJ, Nkabinde J, Skweyiya J (except for [55], [56]
and [60] to [62]) and Van der Westhuizen J (except
for [55], [56]
and [60] to [62]) concurring):
Introduction
The
applicants
1
for leave to appeal are the Minister of Justice and Constitutional
Development (Justice Minister), the Minister of Home Affairs
(Home
Affairs Minister), the Government of the Republic of South Africa
(Government), the Director-General of the Department
of Home
Affairs and various officials of that Department. The respondents
include Mr Emmanuel Tsebe and Mr Jerry Ofense Pitsoe
(Phale).
2
The applicants were some of the respondents in two applications
that were brought separately by Mr Tsebe and Mr Phale in the
South
Gauteng High Court (High Court) but were later consolidated into
one matter.
3
The
primary purpose
4
of Mr Tsebe’s and Mr Phale’s applications was to obtain
an order restraining the Government, the Home Affairs Minister,

certain officials of the Department of Home Affairs, as well as the
Justice Minister and others from extraditing or deporting
the
applicant in each case to the Republic of Botswana (Botswana) in
the absence of a written assurance from Botswana that,
if convicted
of murder, the death penalty would not be imposed, or, if imposed,
it would not be executed (requisite assurance).
Mr Tsebe also
sought an order declaring that, in the absence of the requisite
assurance, his extradition or deportation would
be unlawful and
unconstitutional.
The
Justice Minister and the Government brought a counter-application
in the High Court in which they sought an order declaring
in effect
that, where the Government has been requested to extradite a person
to a foreign State to face a criminal charge
which could lead to
the imposition and execution of a death sentence and the Government
has asked that State to give the requisite
assurance but that State
has refused, the Government is then entitled to extradite or deport
the person concerned to that State.
The applications were heard by a Full Court.
5
The High Court granted Mr Tsebe’s and Mr Phale’s
applications and dismissed the Justice Minister’s and
the
Government’s counter-application.
6
The
applicants now apply for leave to appeal directly to this Court
against the Full Court’s judgment and order. Before
the
applications can be considered, it is necessary to set out the
factual background to the matter.
Background
In
July 2008 Mr Tsebe, a national of Botswana, was accused of
murdering his wife or romantic partner in Botswana. A similar

accusation was made against Mr Phale in relation to his girlfriend
or wife in October 2009. It is not necessary to give details
of how
they are alleged to have murdered their partners but it suffices to
say that, if the allegations about how they killed
their partners
are true, the killings were brutal. When the police in Botswana
tried to arrest Mr Tsebe and Mr Phale in separate
incidents and at
separate times, they fled to South Africa.
It
is common cause that Mr Tsebe’s entry into South Africa was
illegal. Mr Phale disputes the contention that his entry
into South
Africa was illegal. He says that he is a South African citizen and
was issued a South African identity document.
The Department of
Home Affairs says that he is not a South African citizen and that
he obtained the South African identity
document fraudulently. After
Mr Tsebe’s and Mr Phale’s flight from Botswana,
the authorities in Botswana issued
warrants of arrest against them.
Botswana also requested South Africa to extradite the men to
Botswana to face murder charges.
On
or about 27 July 2008 Mr Tsebe was arrested. He was initially
detained at Tomberg Police Station and Polokwane Prison from
28
July 2008 to 25 August 2009, and later at Lindela Holding Facility
from 26 August 2009 onwards. The detention at Tomberg
Police
Station was effected pending the outcome of extradition
proceedings. The detention at Lindela Holding Facility was effected

pending a final decision whether he would be extradited to Botswana
to face the murder charge. He appeared in the Mokopane
Magistrate’s
Court a number of times in connection with his extradition
proceedings.
An
extradition inquiry was initiated in the Mokopane Magistrate’s
Court, in terms of the Extradition Act
7
(EA), to establish whether Mr Tsebe was liable for extradition. The
then Justice Minister, Mr Surty, wrote to his counterpart
in
Botswana and informed him that South Africa would not extradite
Mr Tsebe unless Botswana gave South Africa the requisite

assurance. Botswana’s response was that it would not give the
requisite assurance because there was no provision for
it in its
domestic law and in its extradition treaty with South Africa.
A
meeting between the current Justice Minister and his counterpart
from Botswana was held without success on 14 July 2009 to
try and
resolve the impasse between the two countries. Botswana’s
Justice Minister then suggested that South Africa should
put
Mr Tsebe on trial in South Africa for the murder. The Justice
Minister subsequently wrote to the Justice Minister
of Botswana and
informed him that South Africa had not passed legislation that
would give the South African courts jurisdiction
to try people
for
crim
es committed outside its borders. On 11 March 2009 the
extradition inquiry in the Mokopane Magistrate’s Court was
completed.
The Magistrate found that Mr Tsebe was liable for
extradition.
On 25 August 2009 the Justice Minister issued an order in terms of
section 11(b)(iii) of the EA
8
to the effect that Mr Tsebe should not be surrendered to Botswana
to face the charge of murder. The Justice Minister’s
order in
this regard was based on internal legal advice given to him in the
light of the provisions of section 11(b)(iii) of
the EA and the
decision of this Court in
Mohamed and Another v President of the
RSA and Others
9
(
Mohamed
).
Mr Tsebe was subsequently transferred to the Lindela Holding
Facility pending deportation to Botswana despite the Justice
Minister’s order that he should not be surrendered to
Botswana. Mr Tsebe was transferred because certain officials of
the
Department of Home Affairs, despite the Justice Minister’s
order, took the view that Mr Tsebe should be deported
since he
was an illegal foreigner and in terms of the Immigration Act
10
(IA) he was required to be deported. For quite some time officials
of the Department of Justice and officials of the Department
of
Home Affairs took contradictory positions on whether Mr Tsebe
should be deported, with officials of the Department of Justice

saying he should not and officials of the Department of Home
Affairs saying he should be deported.
Although the
Justice Minister had issued a non-extradition order in respect of
Mr Tsebe, he subsequently deposed to an
affidavit opposing Mr
Tsebe’s and Mr Phale’s applications. He made an
about-turn saying that he had not applied
his mind to all the
issues when he took the decision to issue the non-extradition
order. He contended that, since Botswana
had refused to give the
requisite assurance, the Government was entitled to extradite Mr
Tsebe to Botswana. He said this despite
the fact that the
extradition may have posed a risk for the imposition of the death
penalty if Mr Tsebe was convicted. The
Justice Minister said that
South Africa would use other forums under the auspices of the
Southern African Development Community
(SADC) to try and get
Botswana not to execute the death penalty. The Justice Minister did
not say what would prevent Botswana
from executing the death
penalty if South Africa’s efforts in the SADC failed, since
Mr Tsebe would have already been
extradited by the time those
efforts failed.
Ultimately,
the Home Affairs Minister took the decision that Mr Tsebe should be
deported. It would appear that she based her
decision, at least in
part, on the legal opinions given to her by certain internal legal
advisors in the Department of Home
Affairs. One reason for the Home
Affairs Minister’s decision to deport Mr Tsebe to Botswana,
despite the fact that Botswana
had refused to give the requisite
assurance, was that, even after Mr Tsebe’s deportation, South
Africa could still continue
to put pressure on Botswana not to
execute the death penalty if Mr Tsebe was convicted of the murder
and sentenced to death.
The Home Affairs Minister also did not say
what would happen if Botswana did not give in to the pressure at a
time when Mr Tsebe
was already in Botswana. Another reason was
that Mr Tsebe remained an illegal foreigner and the IA required
that he be deported.
To prevent his imminent deportation, Mr Tsebe brought an urgent
application in the High Court for an interim interdict to restrain

the Home Affairs Minister, certain officials of the Department of
Home Affairs, the Justice Minister and the Government from

extraditing or deporting him to Botswana in the absence of the
requisite assurance. Victor J granted an interim interdict pending

the outcome of an application by Mr Tsebe for the review and
setting aside of the decision of the Home Affairs Minister that
he
be deported. After Mr Tsebe had launched his application in the
High Court, he was charged with contraventions of the IA
and taken
to Krugersdorp Prison where he was detained as an awaiting trial
prisoner. Mr Tsebe passed away on 27 November 2010
before the High
Court could hear his application.
After his arrest in Limpopo, Mr Phale was detained by the South
African Police Service. He subsequently appeared in the Mankweng

Magistrate’s Court. His last appearance there was on 2 March
2010. On that day he was told that the criminal case against
him
had been withdrawn.
The
withdrawal of the case against Mr Phale occurred because an
official of the Department of Justice had advised the National

Prosecuting Authority (NPA) that, in the light of the
non-extradition order in Mr Tsebe’s matter, the Justice
Minister
would not order the extradition of Mr Phale in the absence
of the requisite assurance and the NPA had then shared this
information
with the Director of Public Prosecutions in Botswana.
After consultation with the Executive in Botswana, the Director of
Public
Prosecutions in Botswana advised the NPA that Botswana would
not give the requisite assurance in Mr Phale’s case

either. It seems that, as a result of these communications, the NPA
decided not to pursue extradition proceedings in regard to
Mr Phale
and that is why the “criminal case” was withdrawn
against him. All this happened without the Justice Minister
having
taken any decision with regard to extradition proceedings
concerning Mr Phale and Botswana’s request for
Mr
Phale’s extradition.
Mr
Phale was informed that he was to be deported to Botswana. In
December 2010 he launched his application in the High
Court.
After this, the Department of Home Affairs had criminal charges
initiated against him in the Rustenburg Magistrate’s
Court.
One of the charges was a charge of fraud. It was alleged that he
had fraudulently obtained a South African identity
document. Other
charges related to contraventions of the IA.
The
decision of the High Court
There
was only one issue for determination by the High Court. That was
whether or not the Government had the power to extradite
or deport
Mr Tsebe and Mr Phale to Botswana to face their respective murder
charges even though Botswana had refused to give
the requisite
assurance.
11
If the answer to this question was in the affirmative, that would
be the end of the matter and Mr Tsebe’s and Mr Phale’s

applications would fall to be dismissed. If the answer was in the
negative, Mr Tsebe and Mr Phale would be entitled to the

declaratory order and interdict they sought.
In a
very thorough judgment the Full Court considered the issue and
concluded that it was bound by the decision of this Court
in
Mohamed
and that there was no basis on which the present
case could be distinguished from
Mohamed
.
12
In the light of this the Court concluded that, if the Government
extradited, deported or removed Mr Tsebe and Mr Phale to Botswana,

the extradition or deportation would subject them to the risk of
the imposition of the death penalty and would be unlawful.
13
The Full Court held that the respondents before it would also be in
breach of their constitutional obligations under section
7(2) of
the Constitution
14
if they extradited or deported or in any way removed Mr Phale to
Botswana without the requisite assurance.
Jurisdiction of this Court
There
can be no doubt that this Court has jurisdiction over this matter
because the matter concerns the constitutionality of
the
deportation or extradition by the State of a person to a country in
which the death penalty is a competent sentence for
the offence for
which he will stand trial in circumstances where that country has
refused to give the requisite assurance.
The questions are whether
in effecting an extradition or deportation of a person in such a
case the State will be acting in
breach of its obligations provided
for in section 7(2) of the Constitution and whether such an
extradition or deportation would
violate Mr Tsebe’s and Mr
Phale’s right to life, right to human dignity and right not
to be treated or punished
in a cruel, inhuman or degrading way.
15
Condonation
The applicants
were late in lodging their applications. They have applied for
condonation. Having regard to the explanation
that they have given
and the importance of the issues raised, there can be no doubt that
it is in the interests of justice
that condonation be granted.
Is it in the interests of justice to grant leave to appeal to
this Court?
It
is clear that there is much uncertainty within the Executive as to
the effect of the Constitution and this Court’s
decision in
Mohamed
. Between the parties there are no substantive
disagreements on the facts. There is no reason why this Court
should first have
the views of the Supreme Court of Appeal before
it can entertain this matter. The matter raises important
constitutional issues.
There is also some urgency in the need to
ensure that the Executive knows exactly what is expected of it in
cases of extradition
and deportation involving persons in the
position of Mr Tsebe and Mr Phale. Furthermore, the Justice
Minister and the Home
Affairs Minister are faced with, on the one
hand, the decision of this Court in
Mohamed
, which, if
applicable to this case, would preclude the extradition or
deportation of Mr Phale in the absence of the requisite
assurance
and, on the other, the provisions of the IA which require that an
illegal foreigner be deported. In my view it is
in the interests of
justice that this Court should grant the applicants leave to appeal
directly to it.
The merits of the appeal
The
issue for determination is whether or not the Government has the
power to extradite or deport or in any way surrender a
person,
including an illegal foreigner, to another country to stand trial
on capital charges if the death penalty is a competent
sentence in
that country and that country is not prepared to give the requisite
assurance. Within the context of an appeal
the question is whether
the High Court’s decision that the Government had no power to
extradite, deport or surrender
Mr Tsebe or Mr Phale to Botswana in
the absence of the requisite assurance and interdicting the
Government from extraditing
or deporting them and the decision
dismissing the Justice Minister’s and Government’s
counter-application were
correct.
The approach taken by this Court in
Mohamed
was that, when South African authorities hand
someone over to another country to stand trial on a charge which,
to the knowledge
of the South African authorities, could lead to
the imposition and execution of the death penalty on such person if
he is found
guilty, they facilitate the imposition of the death
penalty and that is a breach of their obligations contained in
section
7(2) of the Constitution.
16
In
Mohamed
this Court held that the conduct of the South
African authorities in handing Mr Mohamed over to the authorities
of the United
States of America (US) to stand trial in that
country, in the full knowledge
17
that, if convicted, he could be sentenced to
death, without obtaining the requisite assurance from the US
government, violated
Mr Mohamed’s constitutional right
to life, right to human dignity and right not to be treated or
punished in a cruel,
inhuman or degrading way.
18
If
the correctness of
Mohamed
is not challenged, the answer to
this question before us will depend on two further questions. One
will be whether the present
case is distinguishable from
Mohamed
.
If it is, the Court will then deal with the matter in the light of
that distinction. If it is not, the next question will
be whether
or not, if extradited or deported, Mr Phale would face a sufficient
risk of the imposition and execution of the
death penalty to
justify this Court holding that his extradition or deportation
would constitute a violation of the Constitution
or a facilitation
by South Africa of the imposition of the death penalty on him in
Botswana if he is convicted.
The
Constitution
This
country is founded on, among others, the following values:
19
Human
dignity, the achievement of equality and the advancement of human
rights and freedoms.
Supremacy
of the Constitution and the rule of law.
Our
Constitution is the supreme law of the Republic. Law or conduct
inconsistent with it is invalid and the obligations imposed
by it
must be fulfilled.
20
Section 7(1) of the Constitution provides that our Bill of Rights,
which covers sections 7 to 39, is a cornerstone of our democracy.

It enshrines the rights of all people in our country and affirms
the democratic values of human dignity, equality and freedom.

Section 7(2) reads:
“
The state must respect,
protect, promote and fulfill the rights in the Bill of Rights.”
Section
7(3) provides that the rights in the Bill of Rights are subject to
the limitations contained or referred to in section
36 or elsewhere
in the Bill of Rights. Section 8(1) of the Constitution provides
that the Bill of Rights “applies to
all law, and binds the
legislature, the executive, the judiciary and all organs of state.”
Section 9(1) provides that
everyone is equal before the law and has
the right to equal protection and benefit of the law.
Sections 10, 11 and 12 of the Constitution deal, respectively, with
the right to human dignity, the right to life and the right
to
freedom and security of the person. Section 10 reads:
“
Everyone has inherent
dignity and the right to have their dignity respected and
protected.”
Section
11 reads:
“
Everyone
has the
right
to
life.”
Section
12(1) reads:
“
Everyone has the right
to freedom and security of the person, which includes the right—
not to be deprived of freedom
arbitrarily or without just cause;
not to be detained without
trial;
to be free from all forms of
violence from either public or private sources;
not to be tortured in any way;
and
not to be treated or punished
in a cruel, inhuman or degrading way.”
The
provisions which this matter directly raises for consideration are
those relating to the values upon which the democratic
South Africa
is founded, sections 2, 7(1) and (2), 10, 11 and 12 of the
Constitution.
International law
It
is necessary also to refer to some instruments or treaties relating
to extradition and the fight against crime to which both
South
Africa and Botswana are parties. In 1969 South Africa and Botswana
concluded a treaty on extradition (Extradition Treaty).
In terms of
that treaty Botswana and South Africa agreed that they may refuse
to extradite a person for a crime punishable
by death. That treaty
is still in operation. Article 6 reads:
“
Capital
Punishment
Extradition may be refused if
under the law of the requesting Party the offence for which
extradition is requested is punishable
by death and if the death
penalty is not provided for such offence by the law of the requested
Party.”
Furthermore, South Africa and Botswana and certain other SADC
countries are also parties to the Protocol on Extradition concluded

under the auspices of the SADC (SADC Extradition Protocol). Article
5(c) of the Protocol allows a State which is being requested
to
extradite a person to refuse to do so—
“
if
the offence for which extradition is requested carries a death
penalty under the law of the Requesting State, unless that State

gives such assurance, as the Requested State considers sufficient
that the death penalty will not be imposed or, if imposed,
will not
be carried out.”
This
article goes on to say:
“
Where
extradition is refused on this ground, the Requested State shall, if
the other State so requests, submit the case to its
competent
authorities with a view to taking appropriate action against the
person for the offence for which extradition had been
requested”.
This
is the second instrument, to which both South Africa and Botswana
are parties, that allows one of them to refuse extradition
of a
suspect charged with a capital offence in the absence of the
requisite assurance. From this it is clear that South Africa
has
acted in accordance with the Extradition Treaty between itself and
Botswana and in accordance with the SADC Extradition
Protocol in
insisting on the requisite assurance before it could extradite Mr
Tsebe.
Article
5(c) of the SADC Extradition Protocol goes even further because it
obliges the requested State (South Africa in the
present case), if
the requesting State (Botswana in the present case) so requests, to
take steps to have the person whom it
refuses to extradite put on
trial before its own courts for the crime for which extradition was
sought. Under the SADC Extradition
Protocol South Africa has agreed
that, if so requested by, for example Botswana, to do so, it will
put persons in the position
of Mr Phale on trial before the South
African courts. South Africa and Botswana are also signatories to
other SADC treaties
and protocols in terms of which they have bound
themselves to work together and with other SADC countries to combat
crime in
the SADC region.
21
The
death penalty in Botswana
It
is also necessary to have regard to the statutory provisions
governing the imposition of the death penalty for murder in

Botswana. Section 203 of the Penal Code of Botswana reads as
follows:
“
(1)
Subject to the provisions of subsection (2), any person convicted of
murder
shall
be sentenced to death
.
(2) Where a court in convicting
a person of murder is of the opinion that there are extenuating
circumstances, the court may impose
any sentence other than death.
(3) In deciding whether or not
there are any extenuating circumstances the court shall take into
consideration the standards of
behaviour of an ordinary person of
the class of the community to which the convicted person belongs.”
(Emphasis added.)
This
provision makes the imposition of the death sentence on those
convicted of murder in Botswana mandatory where there are no

extenuating circumstances. The Penal Code of Botswana also provides
that, where a person has been sentenced to death, he shall
be hanged
by the neck until he dies.
22
Statutory framework
It
is also necessary to refer to provisions of the EA and the IA which
may have a bearing on the dispute between the parties.
In part,
section 11(b)(iii) of the EA
23
gives the Justice Minister the power to order that a person should
not be surrendered to another State if the offence for which
he is
wanted is of a trivial nature or if his surrender is not required
in the interests of justice or if, for any other reason
and having
regard to all the circumstances of the case, it would be unjust,
unreasonable or if the punishment would be too
severe. In other
words, the EA recognises that there are circumstances in which
South Africa should refuse to extradite a person
and sets out those
situations in section 11(b)(iii). Such situations include a
situation where the Justice Minister considers
the punishment or
sentence that the person will or may face, if he is extradited, to
be severe. The Justice Minister has stated
in his affidavit that it
was on the basis of the provisions of section 11(b)(iii), read with
Mohamed
, that he issued the non-extradition order in
Mr Tsebe’s case. There are also provisions of the IA
which need to
be referred to but these will be referred to later in
this judgment.
Mr Tsebe’s and Mr Phale’s cases were based on the
provisions of the Constitution as interpreted and given effect
to
by this Court in both
Makwanyane
24
and
Mohamed
. The decision of the High Court in the present
matter also sought to give effect to the decision of this Court in
Mohamed
. In the light of this a word or two on these two
decisions is necessary.
Makwanyane
In
Makwanyane
25
this Court held that the death penalty was inconsistent with
provisions of the interim Constitution and declared it
unconstitutional.
26
In his judgment, which enjoyed the broad support of a number of the
other Justices, Chaskalson P pointed out that, by committing

ourselves to a society founded on the recognition of human rights,
we were required to give particular value to the rights
to life and
dignity and that “this must be demonstrated by the State in
everything it does”.
27
Mohamed
Mr
Mohamed was a Tanzanian national who, after allegedly taking part
in the bombing of two US embassies in Nairobi and Dar es
Salaam,
entered South Africa illegally. In the full knowledge that, if
taken to the US, Mr Mohamed would stand trial for multiple
murders
arising from the bombings and that, if convicted, he could be
sentenced to death, the South African authorities handed
him over
to US officials without
making
any
acceptable arrangement to ensure either that the death penalty
would not be imposed on him if he was convicted or that,
if
imposed, it would not be executed.
One
of the questions in
Mohamed
was whether the South African authorities were
in the above circumstances entitled to hand Mohamed over to the US
authorities.
This Court found that Mr Mohamed’s deportation
from South Africa to the US was unlawful. This finding must be
understood
within the context of the fact that in
Makwanyane
this Court had already held that the death
penalty was unconstitutional because it violated the right to life,
the right to
human dignity and constituted cruel, inhuman and
degrading punishment.
28
In
Mohamed
this Court held that the provisions of section
7(2) of the Constitution oblige the State to respect, protect,
promote and fulfil
the rights in the Bill of Rights. This includes
the right to life, the right to human dignity and the right not to
be subjected
to cruel, inhuman and degrading punishment or
treatment.
This
Court’s conclusion that Mr Mohamed’s deportation was
unlawful was based in part on
Makwanyane
,
section 7(2) of the Constitution, the knowledge of the South
African authorities of the risk of the imposition of the death

penalty that Mr Mohamed would face in the US if he was removed from
South Africa and taken to the US and the fact that the
removal or
deportation in the circumstances in which it happened violated Mr
Mohamed’s right to life, right to human
dignity and right not
to be subjected to cruel, inhuman or degrading punishment.
29
In
Mohamed
this
Court stated that under our Constitution there are no exceptions to
the protection of the right to life, the right to human
dignity and
the right not to be treated or punished in a cruel, inhuman or
degrading way.
30
However, the Court said that it must be
remembered that, like all the rights in the Bill of Rights, these
rights are subject
to limitation as provided for in section 36 of
the Constitution.
31
This Court also said:
“
Where
the removal of a person to another country is effected by the State
in circumstances that threaten the life or human dignity
of such
person, sections 10 and 11 of the Bill of Rights are implicated.”
32
The
Court went on to say in the next sentence that there was no doubt
that “the removal of Mohamed to the United States
of America
posed such a threat.” It found that “[t]he fact that
Mohamed is now facing the possibility of a death
sentence is the
direct result of the failure by the South African authorities to
secure” an undertaking from the US that
the death penalty
would not be imposed or, if imposed, would not be executed.
33
The question that arises is: What is the
principle that
Mohamed
established? The principle is that the
Government has no power to extradite or deport or in any way remove
from South Africa
to a retentionist State
34
any person who, to its knowledge, if deported or
extradited to such a State, will face the real risk of the
imposition and execution
of the death penalty.
35
This Court’s decision in
Mohamed
means that if any official in the
employ of the State, without the requisite assurance, hands over
anyone from within South
Africa, or under the control of South
African officials, to another country to stand trial knowing that
such person runs the
real risk of a violation of his right to life,
right to human dignity and right not to be treated or punished in a
cruel, inhuman
or degrading way in that country, he or she acts in
breach of the duty provided for in section 7(2) of the
Constitution.
In
Mohamed
this
Court discussed a number of foreign cases
36
dealing with how various courts and other
tribunals have dealt with the question under consideration in this
case. It is not
necessary to repeat that discussion in this
judgment even though parties have referred to such cases in their
argument. We
are not called upon to reconsider the correctness of
this Court’s decision in
Mohamed
.
Accordingly, unless the present case is distinguishable from
Mohamed
we
are bound to decide it in accordance with the principle established
in that case.
The
principle established in
Mohamed
has a direct connection
with the provisions of sections 7(2), 10, 11 and 12 of the
Constitution and the values upon which our
new constitutional
democracy is based. When the first democratically elected
Parliament adopted our Constitution we, as a nation,
turned our
back on a very ugly past which had caused untold suffering to many
in our society. We committed ourselves to the
building of a new
society founded on the values of human dignity, the achievement of
equality and the advancement of human
rights and freedoms,
non-racialism, non-sexism and the supremacy of the Constitution and
the rule of law. We sought to create
a society whose cornerstone
37
is our Bill of Rights which enshrines the rights of all people in
our country and affirms the democratic values of human dignity,

equality and freedom.
One
of the values of our Constitution on which our new society is based
is the advancement of human rights. The effect of our
commitment to
a society based on, among others, this value is that, as a nation,
we have committed ourselves to advancing human
rights in all that
we do. Furthermore, the State is enjoined by section 7(2) of the
Constitution not only to respect, protect
and fulfil all the rights
in the Bill of Rights but, very importantly in the context of this
case, also to promote all rights
in the Bill of Rights.
Accordingly, it is in this context that the principle established
in
Mohamed
must be seen. In
Kaunda and Others v President
of the Republic of South Africa
38
this Court also emphasised in effect the centrality of the
advancement of human rights and freedoms in our society. It said:
“
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.”
39
This
passage applies also when the Government deals with foreigners who
are within the borders of this country who face the real
risk of the
abuse of their human rights if they were to be extradited, deported
or in any way surrendered to another country
in which they would be
exposed to such violations.
Is
Mohamed
distinguishable?
It
is important to record that at the hearing of this matter neither
counsel for the Justice Minister nor counsel for the Home
Affairs
Minister argued that
Mohamed
was wrongly decided and should
be revisited. On the contrary counsel for the Justice Minister
informed the Court that he embraced
40
this Court’s decision in
Mohamed
. For his part,
counsel for the Home Affairs Minister indicated that, on the facts
of the
Mohamed
case and on the correct application of the
relevant legal principles to the facts in
Mohamed
, no court
could have reached any conclusion other than the conclusion that
was reached by this Court.
Although
counsel for the Justice Minister initially announced that he would
not seek to distinguish the present case from
Mohamed
, he
later sought to do so. He
pointed out that in
Mohamed
there
was no possibility of Mr Mohamed going free whereas in the present
case there was a possibility that Mr Phale could go
free if he
could not be extradited or deported. What counsel was referring to
was that, if Mr Phale cannot be deported, he
will have to be freed
from detention because he cannot be detained indefinitely. The fact
that there was no possibility of
Mr Mohamed going free is not a
basis to distinguish the present case from
Mohamed
.
One need only go back to the principle established in
Mohamed
to appreciate this because the decision was not
dependent upon whether Mr Mohamed could or could not go free.
The
Justice Minister also submitted in his affidavit that the present
case was distinguishable from
Mohamed
because in that case
the Court did not have to consider the provisions of the EA whereas
in this case the Court has to consider
the provisions of the EA. We
do not agree. The submission ignores the fact that in
Mohamed
this Court made it clear that the obligation of the Government to
secure the requisite assurance could not depend on whether
the
removal is by extradition or deportation. This Court said that the
constitutional obligation depends on the facts of the
particular
case and the provisions of the Constitution, not on the provisions
of the empowering legislation or extradition
treaty under which the
deportation or extradition is carried out.
41
Counsel
for the Justice Minister also submitted that, when the Justice
Minister performs his statutory extradition duties, he
performs an
act of State. This submission seems to suggest that in such a case
the Justice Minister is not obliged to respect,
protect, promote,
or fulfil the rights in the Bill of Rights as required by section
7(2) of the Constitution. I am unable to
agree with this
submission. Section 7(2) is not qualified in any way. Accordingly,
the obligations it places upon the State
apply to everything that
the State does. This Court has already made it clear in
Mohamed
that there are no exceptions to the right to
life, the right to human dignity and the right not to be subjected
to treatment
or punishment that is cruel, inhuman or degrading.
42
These are the rights that the State must
respect, protect, promote and fulfil in a case such as the present
one.
Counsel
for the Justice Minister also submitted that the Court should find
that to require that the Government should ask Botswana
to give the
requisite assurance would constitute interference with the
prosecutorial independence of the prosecuting authority
of Botswana
and with the independence of the Judiciary of Botswana. One answer
to this is that it is not an essential requirement
of the assurance
that the death penalty will not be asked for by the prosecutorial
authorities of Botswana nor is it an essential
requirement that the
trial Judge in Botswana will not impose the death penalty. What is
of critical importance is the giving
of the assurance that, if the
death penalty is imposed, it will not be executed. Accordingly,
this does not in any way affect
the independence of the courts of
Botswana or the prosecutorial independence of the Director of
Public Prosecutions in Botswana.
The execution of the death penalty
falls within the authority of the Executive. It is up to the
Executive whether it is prepared
to provide the requisite
assurance. The Constitution of Botswana gives the President of that
country power to intervene and
substitute a term of imprisonment
for the death penalty.
43
Another answer is that in terms of the SADC
Extradition Protocol, to which both Botswana and South Africa are
parties, Botswana
has agreed that South Africa may request it to
provide the requisite assurance in a case such as Mr Tsebe’s
and Mr Phale’s.
Counsel
for the Justice Minister also submitted that the Executive must be
given an opportunity to resolve the dispute between
South Africa
and Botswana politically through the Organ of Politics, Defence and
Security under the auspices of the SADC. This
is correct and a
resolution in that forum is desirable. Although one has some
understanding of the Justice Minister’s
concern in this
regard, the fact of the matter is that Mr Phale has a dispute with
the Government that can be resolved by the
application of law and
he has a right in terms of section 34 of the Constitution to have
that dispute resolved through the
application of law by the
courts.
44
Once he has brought the dispute to the courts,
the courts must decide the dispute. If this Court comes to the
conclusion that
the Government cannot extradite or deport Mr Phale
to Botswana in the absence of the requisite assurance without being
in breach
of the Constitution, this will not mean that the
Executive may not pursue a political solution to the problem
through some
or other structures of the SADC. That may be done and,
indeed, is to be encouraged. However, to avoid a breach of the
Constitution,
it is necessary to protect the rights of Mr Phale
pending the exhaustion of those avenues. Accordingly, this Court
cannot uphold
the Justice Minister’s contention.
In
the affidavits delivered by the Department of Home Affairs one of
the bases upon which the judgment of the High Court was
criticised
was that it approached the
Mohamed
case as if it laid down
an absolute rule that precluded the consideration of each case on
its merits. It seems that this criticism
may have been based on the
statement in
Mohamed
that the Government’s obligation
to secure the requisite assurance depended “on the facts of
the particular case
and the provisions of the Constitution”.
45
The reference to the facts of the particular case in
Mohamed
46
was nothing more than a reference to the facts relating to whether
or not it could be said that there was a real risk that,
if the
person concerned was extradited or deported, he would face the
imposition and execution of a death penalty or he would
face
treatment or punishment that would be cruel, inhuman or degrading.
What was meant was that, once it was accepted that
the facts
established such a risk, the principle in
Mohamed
applies.
That statement did not mean that there were exceptions to the
principle established. The position is, therefore, that,
if the
extradition or deportation of a person will expose him to a real
risk of the imposition and execution of the death penalty,
the
State may not extradite or deport that person. There is no
exception to this principle. If the requisite assurance is given,

there is, as a general proposition, no such real risk and the
person may be deported or extradited.
The
Justice Minister also suggested in his affidavit that the decision
of the High Court was based upon an excessive concern
about the
rights of Mr Tsebe and Mr Phale and a complete disregard for the
rights of the rest of the people of South Africa
who are also
entitled to the protection of their rights contained in the Bill of
Rights and the obligation which the Government
has of protecting
the rest of the population against people who may have committed
violent crimes. The implication of the Justice
Minister’s
suggestion was that, if the Court below had also paid attention to
the rights of people other than Mr Tsebe
and Mr Phale, it would
have concluded that the Government was entitled to extradite or
deport Mr Phale. In support of this
contention reference was made
to
Carmichele v Minister of Safety and Security
.
47
Part of the answer to this is that neither Mr Tsebe nor Mr Phale
had been convicted of murder. In terms of our law anyone who
is
charged with a crime or who is suspected of the commission of a
crime is presumed to be innocent until proven guilty. That

principle applies to persons in the position of Mr Phale as well.
In any event there are many citizens of our own country who
are not
in jail or detention and who are out in society even though they
face serious charges like murder. We do not say that
they must
never get bail merely because they are charged with serious crimes.
After all, the obligation to protect the population,
which the
Government has, requires nothing more than that the Government must
put in place reasonable measures to discharge
that obligation. The
decision of this Court in
Carmichele
is not necessarily
inconsistent with the non-extradition or non-deportation of a
person in Mr Phale’s position. Finally,
as
Carmichele
was relied upon without any elaboration, no further consideration
thereof is warranted.
In any event the approach taken by this Court in
Mohamed
in
consequence of sections 7(2), 10, 11 and 12(1) of the Constitution
is one that many progressive societies in the world adopt.
As
indicated earlier, section 11(b)(iii) of the EA also contemplates
that the Justice Minister may order that someone wanted
for a crime
in another country shall not be surrendered to that country. In
this regard it needs to be pointed out that section
11(b)(iii) is
not a pre-democracy provision. Although the EA was enacted before
1994, section 11(b)(iii) was introduced into
the EA after 1994.
48
Furthermore, the SADC Extradition Protocol contemplates that a
State that is party to that Protocol may refuse to extradite
a
person in Mr Tsebe’s and Mr Phale’s position.
The
allegations against Mr Phale are very serious. He should, indeed,
face justice. The question is how to reconcile the need
to bring
him to justice with the protection the Constitution affords him
against the death penalty. The reconciliation, as
I have suggested
elsewhere, lies in the sphere of inter-governmental relations
because it is clear that, under international
law, Botswana is able
to give the requisite assurance and South Africa is entitled to
decline to surrender Mr Phale until that
has happened.
All the complaints which the Justice Minister, the Home Affairs
Minister, the Director-General of Home Affairs and various

officials of the Department of Home Affairs have articulated about
the implications or difficulties which they perceive will
arise if
the legal position is that Mr Phale may not be surrendered,
extradited or deported to Botswana are implications that
would
arise in any event if the Justice Minister were to decide, as he
decided in the case of Mr Tsebe, that he would use his
powers under
section 11(b)(iii) of the EA to order that Mr Phale or anybody in
Mr Phale’s or Mr Tsebe’s position
for that matter,
should not be extradited despite the fact that he is wanted for a
serious crime in another country. That is
a power which the Justice
Minister already had before this Court’s decision in
Mohamed
.
The Justice Minister has had the power since the coming into effect
of
section 9
of the
Extradition Amendment Act 77 of 1996
. This
Court’s decision in
Mohamed
was handed down in 2001.
The
concerns which both the Home Affairs Minister as well as the
Director-General of Home Affairs raise concerning the obligations

that they have under the IA to ensure the deportation of illegal
foreigners and the question of what such a person’s
status in
the country would be if he was not deported or extradited are
concerns which would also arise if the Justice Minister
were to use
his powers under
section 11(b)(iii)
of the EA even if this Court’s
decision in
Mohamed
had not been made. This does not detract
from the fact that these are legitimate concerns. However, the
provision of the IA
49
relating to the obligation to deport an illegal foreigner must be
read consistently with the Constitution. It cannot be read
to
require the deportation of a person in circumstances in which the
deportation would be a breach of the Constitution. It
is true that
the continued presence of Mr Phale in the country, an alleged
illegal foreigner who is wanted by another country
for a crime as
serious as murder, would be a continuing concern for the Government
and the people of South Africa in general.
However, it needs to be
pointed out that the IA defines “deport” in wide terms
which include the Director-General
ordering an illegal foreigner to
leave South Africa, but if such foreigner thereafter remains in the
country, he is guilty
of an offence punishable by imprisonment in
terms of the IA.
50
Having said this, I am of the view that the preferable solution to
the problem lies, as already pointed out, in inter-governmental

interaction and an acceptance by Botswana that South Africa’s
conduct is not in breach of but is in accordance with the

Extradition Treaty between and in accordance with the SADC
Extradition Protocol.
The Justice Minister also referred in his affidavit to the fact
that his department is working on revised draft extradition

legislation. The purpose of that draft legislation is to give the
South African courts jurisdiction to try crimes that have
been
committed outside the borders of this country in cases such as Mr
Tsebe’s and Mr Phale’s because ordinarily
the South
African courts do not have jurisdiction to try such cases. The
Justice Minister revealed that there are instances
where South
Africa has already put in place legislation that gives the South
African courts jurisdiction to try certain specified
offences
despite the fact that they were committed outside South Africa. He
gave two examples of pieces of legislation that
have been passed in
this regard, namely, the Prevention and Combating of Corrupt
Activities Act
51
and the Implementation of the Rome Statute of the International
Criminal Court Act.
52
It
seems that, if South Africa could pass legislation to give its
courts jurisdiction to try crimes which have been committed
outside
South Africa, there is no reason why similar legislation cannot or
should not be put in place to ensure that persons
in Mr Tsebe’s
and Mr Phale’s position can be tried by the South African
courts when countries in which they
allegedly committed the crimes
are not prepared to give the requisite assurance. Such legislation
would prevent persons in
the position of Mr Tsebe or Mr Phale
not being put to trial at all because South Africa will not
extradite or deport them
in the absence of the requisite assurance
and cannot also put them on trial and the other State cannot try
them because they
are not there and will also not give South Africa
the requisite assurance. In doing so, South Africa would also be
discharging
its obligations under the SADC Extradition Protocol to
put on trial before its courts persons in Mr Tsebe’s and Mr
Phale’s
position where the SADC country requesting
extradition refuses to give South Africa the requisite assurance
and requests it
to put such person on trial before its own courts.
The Justice Minister has indicated that there will be difficulties
in bringing foreign witnesses to South Africa to testify
in trials
relating to crimes committed outside South Africa. We do not see
this as an insurmountable difficulty. Obviously,
such trials will
need the co-operation of the country which would have sought the
extradition of the person concerned. It is
unlikely that such
countries would prefer that such persons should not be put on trial
at all if they cannot be put on trial
in those countries. It is
likely that they would rather have them tried in South Africa and
hope that they will get long terms
of imprisonment instead of not
being punished at all. For that reason it is likely that such
countries will co-operate with
South Africa to put such persons on
trial in South Africa. In this case Botswana did suggest to the
Justice Minister that Mr
Tsebe be put on trial in South Africa but
South Africa could not accede to the request because it had not
passed the necessary
legislation to give the South African courts
jurisdiction. It seems to me that Botswana would have taken
whatever steps were
necessary to ensure that the state witnesses
who would have been used in Botswana are brought to South Africa at
the time of
the trial to give evidence.
The
Justice Minister has also expressed the concern that the Government
does not want our country to be perceived as a safe
haven for
illegal foreigners and fugitives from justice wanted for serious
crimes in other countries. This concern was discussed
by the High
Court.
53
Although it is a legitimate concern, it will not arise if countries
seeking an extradition of someone in Mr Phale’s position

would be prepared to give the requisite assurance. Furthermore, our
concern about that perception cannot override the need
for us as a
nation to stay on course on the path we have chosen for ourselves
to respect, protect, promote and fulfil human
rights, to observe
our Constitution and deepen the values upon which we have chosen to
create our new society. Those values
include human dignity, the
achievement of equality and the advancement of human rights and
freedoms.
It
also seems implied in the Justice Minister’s statements in
the affidavit that he or the Government may also be concerned
that,
if the Government cannot deport or extradite persons in Mr Tsebe’s
and Mr Phale’s position, this may be seen
as undermining its
obligations under treaties concluded with other states in terms of
which they must co-operate to fight crime,
particularly in the SADC
region. This Court regards these concerns as legitimate because it
is true that the Government must
not only fight crime but it must
also be seen to be sparing no effort in fighting crime. However, it
must be remembered that
our Constitution is our supreme law and in
section 7(2) it places on the State the obligation to respect,
protect, promote
and fulfil, among others, the right to life, the
right to human dignity and the right not to be treated or punished
in a cruel,
inhuman or degrading way. In addition the SADC
Extradition Protocol entitles the signatories to it to refuse to
extradite suspects
if the requesting State does not furnish the
requisite assurance. Accordingly, among the SADC countries South
Africa’s
conduct will not be perceived negatively because the
SADC Extradition Protocol contemplates South Africa’s
conduct. So,
the Government will not be doing anything wrong if it
refuses to extradite or deport Mr Phale. In terms of the SADC
Extradition
Protocol it will be within its rights to do so. In any
event, the obligations South Africa incurs in terms of treaties
concluded
with other countries are required to be consistent with
its constitutional obligations.
The
human rights provided for in sections 10, 11 and 12 of our
Constitution are not reserved for only the citizens of South

Africa. Every foreigner who enters our country –whether
legally or illegally – enjoys these rights and the State’s

obligations contained in section 7(2) are not qualified in any way.
Therefore, it cannot be said that they do not extend to
a person
who enters our country illegally. In the light of this the question
then would be: How does the Government discharge
its section 7(2)
obligations in respect of such a person if it extradites, deports
or surrenders him to a State where, to its
knowledge, he runs the
real risk of the imposition and execution of the death penalty if
he is convicted of the crime for which
he is wanted?
The
question in the preceding paragraph leads one to the
counter-application for an order that would allow the Government to

extradite, deport or surrender persons in Mr Tsebe’s and
Mr Phale’s position after the Government has asked
the State
concerned to give the requisite assurance and that State has
refused. That application was correctly dismissed by
the High
Court. What would be the value of South Africa’s request for
the requisite assurance if its rejection would
have no consequences
for the other State? The other side of every legal obligation is a
legal right. In this context the State
has section 7(2) obligations
and the person who has the legal right to the State’s
protection, promotion and fulfilment
of his right to life, right to
human dignity and right not to be subjected to cruel, inhuman or
degrading punishment is the
person sought by the other State for
extradition. If the position was that, after South Africa has asked
such a State for the
requisite assurance and such State has
refused, South Africa may extradite, deport or surrender such
person to such State,
that person would be entitled to say: The
right to life, the right to human dignity and the right not to be
subjected to cruel,
inhuman or degrading punishment and the State’s
obligations under section 7(2) are not worth anything. That would
be
untenable.
We
as a nation have chosen to walk the path of the advancement of
human rights. By adopting the Constitution we committed ourselves

not to do certain things. One of those things is that no matter who
the person is and no matter what the crime is that he is
alleged to
have committed, we shall not in any way be party to his killing as
a punishment and we will not hand such person
over to another
country where to do so
will expose him to the
real risk of the imposition and execution of the death penalty upon
him. This path that we, as a country,
have chosen for
ourselves is not an easy one. Some of the consequences that may
result from our choice are part of the price
that we must be
prepared to pay as a nation for the advancement of
human
rights and the creation of the kind of society and world that we
may ultimately achieve if
we abide by the constitutional
values that now underpin our new society since the end of
apartheid.
If
we as a society or the State hand somebody over to another State
where he will face the real risk of the death penalty, we
fail to
protect, respect and promote the right to life, the right to human
dignity and the right not to be subjected to cruel,
inhuman or
degrading treatment or punishment of that person, all of which are
rights our Constitution confers on everyone.
This Court’s
decision in
Mohamed
said that what the South African
authorities did in that case was not consistent with the kind of
society that we have committed
ourselves to creating. It said in
effect that we will not be party to the killing of any human being
as a punishment –
no matter who they are and no matter what
they are alleged to have done.
54
Counsel for the
Home Affairs Minister also submitted at some stage during argument
that the matter should be remitted to the
High Court for that Court
to assess whether the risk to which Mr Phale would be exposed if he
was deported to Botswana was
real. Later counsel submitted that the
Home Affairs Minister must be given an opportunity to assess that
risk. In my view there
is no need to do so because there is enough
before this Court to make the assessment of the risk.
In
their affidavits, the Justice Minister and Mr Modiri Matthews of
the Department of Home Affairs advanced various other bases
upon
which they contended that the present case should be distinguished
from
Mohamed
. In our view those bases were not material and
cannot be relied upon to distinguish the present case from
Mohamed
.
Application of the
Mohamed
principle to the facts
The
dispute between the parties is whether the Government has the power
to deport or extradite Mr Phale to Botswana to face
a trial for
murder in that country in the absence of the requisite assurance.
In the light of the fact that in oral argument
no party argued that
Mohamed
was wrongly decided, and no basis exists to
distinguish the present case from
Mohamed
, the only question
that requires determination in order to decide whether the decision
of the High Court was right is whether
it can be said that, if
Mr Phale was to be extradited or deported to Botswana, he
would, if convicted of the alleged murder,
face a real risk of the
imposition and execution of the death penalty.
Would
Mr Phale face the real risk of a death penalty if extradited or
deported?
Counsel
for the Home Affairs Minister submitted that there was only a
possibility and not a real risk or likelihood of the imposition
and
execution of the death penalty on Mr Phale if he was deported. He
submitted that a mere possibility of the imposition and
execution
of the death penalty was not enough. We do not agree that in this
case there is only a mere possibility of the imposition
and
execution of the death penalty on Mr Phale if he is extradited or
deported to Botswana and is thereafter convicted of murder.
First,
the alleged killing was brutal. Second, the law in Botswana is that
for murder the death penalty is mandatory if there
are no
extenuating circumstances. Third, none of the parties placed before
the Court any extenuating circumstances. Accordingly,
this Court
must assess the risk of the imposition of the death sentence on Mr
Phale, if he is convicted, on the basis that
he will have been
found guilty of murder without any extenuating circumstances. In
such a case the imposition of the death
penalty will be mandatory.
Accordingly, there can be no doubt that, if Mr Phale were deported
or extradited to Botswana, he
would face a real risk of the
imposition of the death penalty if he were to be found guilty.
Once
the death penalty is imposed, there will be nothing to prevent the
State of Botswana from executing the death penalty.
Indeed, a study
of the execution of the death penalty in Botswana conducted by the
International Federation for Human Rights
reveals that there has
only been one case in which the death penalty was not executed. The
evidence put before this Court showed
that there were 32 executions
between 1966 and 1998. According to my calculations, that amounts
to an average of at least one
execution per year. In any event, if
Botswana did not intend to execute the death penalty on Mr Phale
if one was imposed,
there is no reason why it would not have given
South Africa the requisite assurance. In the light of this, the
conclusion is
that, if Mr Phale were extradited or deported to
Botswana, he will face a real risk of the imposition and execution
of the
death penalty if he is found guilty of the murder.
Accordingly,
in terms of section 7(2) of the Constitution the Government is
under an obligation not to deport or extradite Mr
Phale or in any
way to transfer him from South Africa to Botswana to stand trial
for the alleged murder in the absence of the
requisite assurance.
Should the Government deport or extradite Mr Phale without the
requisite assurance, it would be acting
in breach of its
obligations in terms of section 7(2), the values of the
Constitution and Mr Phale’s right to life, right
to human
dignity and right not to be subjected to treatment or punishment
that is cruel, inhuman or degrading. In my view no
grounds exist
upon which the judgment of the High Court can be faulted.
The
appeals fall to be dismissed. With regard to costs there is no
reason why the applicants should not be ordered to pay the
costs of
the Society for the Abolition of the Death Penalty in South Africa
and Mr Phale, including the costs consequent upon
the employment of
two counsel. As indicated earlier, Mr Tsebe died before his
application could be heard by the High Court.
I note that an
attorney from Lawyers for Human Rights deposed to an affidavit in
opposition of the applicants’ application
before this Court
and indicated in that affidavit that she was doing so “on
behalf of” Mr Tsebe. She indicated
that she was doing so
because all the parties were of the view that it was in the public
interest that Mr Tsebe’s matter
should also be heard. It
seems to me that there is no basis for making an order of costs in
respect of Mr Tsebe’s matter
in the proceedings before this
Court since Mr Tsebe died prior to the hearing in the High Court.
In any event, the issues raised
in respect of Mr Phale’s
matter were in substance the same issues as those raised in respect
of Mr Tsebe. That being
the case, I am of the view that if only Mr
Phale’s matter was proceeded with, it would not have been
necessary also to
oppose the applicants’ application “on
behalf of” the late Mr Tsebe. Accordingly, I propose to
confine the
order of costs to Mr Phale and the Society for the
Abolition of the Death Penalty in South Africa.
In
the result the following order is made:
Condonation
is granted.
Leave
to appeal is granted.
The
appeals are dismissed.
The applicants
are ordered to pay the costs of Mr Phale, and the Society for the
Abolition of the Death Penalty in South Africa,
including the costs
consequent upon the employment of two counsel.
CAMERON J (Froneman J, Skweyiya J and Van der Westhuizen J
concurring):
I
concur in the judgment of Zondo AJ, except for , and to , which in
my view are not necessary for the decision.
YACOOB ADCJ:
I have read the judgment of Zondo AJ and cannot agree that leave to
appeal should be granted. I would refuse leave to appeal.
This
is an application for leave to appeal against a decision of the
Full Court of the South Gauteng High Court
55
(High
Court) in effect holding that the extradition or deportation of Mr
Jerry Ofense Phale
56
(second respondent), a Botswana national, to Botswana to face
capital charges in that country was unconstitutional. The High

Court reached its decision on the basis of the judgment of this
Court in
Mohamed
57
which held that our Constitution did not allow a Tanzanian national
to be deported or extradited to the United States of America
to
face capital charges there without first receiving an assurance
that the death penalty would not be imposed, or, if imposed,
that
it would not be executed.
The High Court had two applications before it, which were
consolidated and heard together. The one was by Mr Emmanuel Tsebe
58
(first respondent) and the Society for the Abolition of the Death
Penalty in South Africa and the other by Mr Phale against
the
Minister of Home Affairs (Home Affairs Minister) and the Minister
of Justice and Constitutional Development (Justice Minister).
They
both sought the following order:
“
1.
Declaring the deportation and/or extradition and/or removal of the
applicant to the Republic of Botswana unlawful and unconstitutional,

to the extent that such deportation and/or extradition and/or
removal be carried out without the written assurance from the
Government of Botswana that the applicant will not face the death
penalty there under any circumstance;
2. Prohibiting the respondents
from taking any action whatsoever to cause the applicant to be
deported, extradited or removed
from South Africa to Botswana until
and unless the Government of the Republic of Botswana provides a
written assurance to the
respondents that the applicant will not be
subject to the death penalty in Botswana under any circumstances;
3. Directing the first and
second respondent and any other party who opposes the relief sought
herein to pay the applicants’
costs inclusive of the cost of
two counsel.”
The
Justice Minister, in a counter-application, asked for an order
declaring that:
“
[T]he
Minister for Justice and Constitutional Development is authorised by
the Constitution of the Republic of South Africa 1996,
read with the
provisions of the Extradition Act 67 of 1962 (more particularly
section 11 thereof) to order any person, accused
of an offence
included in an extradition agreement and committed within the
jurisdiction of a foreign State party to such agreement,
and who has
been committed to prison under section 10 of the said Act, to be
surrendered to any person authorised by such foreign
State to
receive him or her, notwithstanding that the extraditable offence
for which extradition has been requested carries a
death penalty
under the law of that State, in circumstances where:
(a) the Republic of South
Africa has sought an assurance from the foreign State that the death
penalty will not be imposed, or
if imposed, would not be carried
out; and
(b) the foreign State has
refused to provide such an assurance by virtue of provisions
contained in its domestic law.”
The
High Court granted the order sought in both applications with costs
and dismissed the Justice Minister’s counter-application,

also with costs.
The
High Court handed down only one judgment. The application for leave
to appeal by the Home Affairs Minister, Justice Minister
and other
government entities is against the whole of the judgment of the
High Court. The submissions by the applicants for
leave to appeal
in both cases overlap considerably. I will therefore refer to the
applicants jointly as the government and
to the submissions as
government submissions.
The
relevant facts
The
relevant facts are common cause and it is not necessary to set them
out in great detail. In brief:
a. Mr Tsebe and Mr Phale fled to South Africa and were both charged
with murder in Botswana in that they intentionally killed
their
partners.
b.
Botswana sought separately to have Mr Tsebe and Mr Phale extradited.
c.
Capital punishment remains alive in Botswana.
d. The Justice Minister requested an assurance from Botswana that,
upon extradition, the death sentence would not be imposed
on Mr
Tsebe and that if it was, it would not be executed. This request was
refused.
e. With respect to Phale, it appears that Botswana refused to give
the assurance that the death penalty would not be imposed
and that
it would not be executed if imposed.
f. The Extradition Agreement between South Africa and Botswana
provides, in effect, that South Africa is not obliged to extradite

any person to Botswana in respect of an offence for which the death
penalty is competent.
Application
for leave to appeal
This
case is concerned with the lawfulness and constitutionality of the
intended deportation of Mr Phale. The only issue that
needs our
attention is whether it is in the interests of justice to grant
leave to appeal.
It
is true that there was initially a difference between the Home
Affairs Minister and the Justice Minister on whether or not
Mr
Tsebe should be removed from the country.
59
The Justice Minister took the view, on the authority of
Mohamed
,
that extradition was not competent without the requisite assurance
while the Home Affairs Minister came to the conclusion
that
deportation was competent despite the decision in
Mohamed
and the threat of the death penalty. Indeed, the Home Affairs
Minister would have deported Mr Tsebe and Mr Phale in the face
of
the reasoning in
Mohamed
without approaching any court! The
Justice Minister’s opinion has now changed as is apparent
from the declarator applied
for by him and by the fact that he did
not request any assurance in relation to Mr Phale.
60
I do not think there is any uncertainty. Both the Justice Minister
and the Home Affairs Minister are of the view that it is
not
unconstitutional or unlawful to extradite or deport Mr Phale to
Botswana absent an assurance that the death penalty will
not be
imposed. It was on the basis of this conviction that the Home
Affairs Minister opposed the application in the High Court
and the
Justice Minister sought the declarator there.
It
is worth re-emphasising that the Home Affairs Minister sought to
remove Mr Tsebe and Mr Phale without approaching a
Court
despite the judgment in
Mohamed
.
61
Having applied her mind to
Mohamed
, the Minister should have
realised, that at best the deportation or extradition of Mr Tsebe
and Mr Phale was far from straightforward
and, potentially contrary
to a judgment of this Court. Government should indeed be more
careful and sensitive, especially where
a decision to be taken is
likely to have an impact on fundamental rights. In this case Mr
Phale would have faced the likelihood
of a death sentence if the
plans of the Home Affairs Minister were not rendered awry by the
actions of Lawyers for Human Rights
and the Society for the
Abolition of the Death Penalty. We cannot expect that third parties
will come to the aid of vulnerable
people in the position of Mr
Tsebe and Mr Phale at the last minute. One would have thought that
at the very least, government
would have approached the High Court
for clarification before attempting to proceed with their removal
in these circumstances.
All the more so, since the relevant
Ministries were not initially wholly in agreement as to the
approach to be followed.
If
indeed there was any uncertainty, it was resolved by the detailed
High Court judgment, which deals extensively and persuasively
with
many of the arguments re-advanced in this Court by reference to the
provisions of our Constitution, international law,
South African
extradition law, and in particular
Mohamed
.
I
accept that the matter is of some importance but where, in a matter
of public importance, the judgment of a High Court is
detailed and
convincing it will ordinarily be in the interests of justice to
grant leave to appeal only if there is a reasonable
prospect that
the High Court was wrong. We cannot ordinarily grant leave to
appeal where the criticisms of a High Court judgment
do not amount
to prospects of success.
62
There may be cases in which a High Court’s reasoning is
questionable even though the decision might be correct. I now
turn
to the contentions advanced by the government in order to determine
whether it establishes reasonable prospects of success
or whether
there is any respect in which the reasoning of the High Court might
be said to be wrong.
The
government accepted the correctness of
Mohamed
and that it
remains valid law in our country. The contentions advanced were
that the cases before us are distinguishable from
Mohamed
in
certain respects. I deal with each of these separately.
The
first distinguishing feature relied upon by government is that Mr
Mohamed was a Tanzanian national who had been deported
to the
United States of America, while Mr Phale was to be deported to his
own country. This proposition is unarguable. How
can it make any
difference whether the person is sentenced to death in his own
country rather than in some other country? The
fact is that he
will, if extradited or deported, be sent from this country and that
creates a causal link between his extradition
or deportation and
the imposition of the death penalty. The notion that this
difference is sufficiently material to distinguish
these cases from
Mohamed
falls to be rejected. There is no prospect that this
argument will succeed.
The
second purported distinction is that there is not a real risk, as
was the case in
Mohamed
, that Mr Phale would be sentenced to
death. This proposition too is untenable for two reasons. First, if
the state’s
allegations are correct, Mr Phale committed a
murder which may well attract the death sentence. Second, it is
destroyed by
the insistence of the Botswana government to not give
the necessary assurance. Why refuse if there is no possibility that
the
death penalty would be imposed anyway?
The
third equally untenable distinguishing feature contended for was
that there was a possibility that Mr Phale would go free
in this
case if not extradited while there was no such possibility in
Mohamed
. This implies that the Constitutional Court in
Mohamed
would, if Mr Mohamed had still been inside South
Africa at the time the application was made, have allowed his
deportation
or extradition to go ahead even if there had been a
real risk that the death penalty would have been imposed. In other
words,
this Court’s decision on the unlawfulness of Mr
Mohamed’s removal was based on the fact that he was no longer
in
this country. This is an unacceptable contortion of
Mohamed
and has no prospect of acceptance by this Court.
63
The
final distinguishing feature relied upon was that
Mohamed
was not concerned with the Extradition Act.
64
This submission ignores the whole thrust of the decision to the
effect that it did not matter whether Mr Mohamed was extradited
or
deported. An extradition occurs in terms of the Extradition Act.
Again, the proposition is not worthy of consideration.
Other
arguments advanced before this Court were that:
The
Justice Minister performed his extradition function as an act of
state and it should not be impinged upon;
requiring
the assurance impacted negatively on prosecutorial and judicial
independence in Botswana;
the
Executive must be given the opportunity to negotiate delicate
instances of this kind;
the
decision of the High Court precluded a consideration of the case
before it on its particular facts and circumstances;
and
the
High Court judgment showed excessive concern for people like
Mr Tsebe and Mr Phale.
These
submissions have nothing to do with the contention that the cases
before us are distinguishable from
Mohamed
. Rather, they are
an attempt at criticisms of
Mohamed
and to seek its
modification. This attempt cannot be entertained.
Mohamed
requires no modification.
As
is apparent from the judgment of the High Court,
Mohamed
is
simply not capable of the construction that it is permissible to
extradite someone if a request for the necessary assurance
is
refused. Nor is it capable of meaning that a deportation would be
competent absent an assurance. The High Court was undoubtedly
right
and it is unnecessary, in my view, to cover the terrain so well
traversed by the High Court in relation to the legal
issues and
their resolution all over again.
In
the circumstances it is not in the interests of justice to grant
leave to appeal. Accordingly, I would refuse leave to appeal
with
costs.
To
the extent that uncertainty is the pivot for granting leave to
appeal, I must point out in conclusion that this judgment
leaves
the government in no doubt that deportation, extradition or any
form of removal under these circumstances is wholly
unacceptable.
For
the First to Fourth Applicants in CCT 110/11: Advocate MTK Moerane
SC and Advocate L Gcabashe SC instructed by the State
Attorney.
For
the First and Second Applicants in CCT 126/11: Advocate M Donen SC
and Advocate S Poswa-Lerotholi instructed by the State
Attorney
For
the First and Second Respondents in CCT 110/11 and CCT
126/11: Advocate A Katz SC, Advocate M du Plessis and Advocate N

Lewis instructed by Lawyers for Human Rights.
For
the Third Respondent in CCT 110/11 and CCT 126/11: Advocate S
Budlender and Advocate J Brickhill instructed by the Legal Resources

Centre.
For
the Amicus Curiae: Advocate P Kennedy SC, Advocate D Simonsz and
Advocate M Adhikari instructed by the Wits Law Clinic.
1
In
this Court, although the Minister of Justice and Constitutional
Development and the Minister of Home Affairs and officials
under the
latter’s control brought separate applications, this is one
matter. There seems to be confusion in the Notice
of Motion and the
Founding Affidavit of the Minister of Home Affairs’
application to this Court as to whether it was direct
access or
direct appeal under Rule 19, but it will be treated as an
application for direct appeal under Rule 19.
2
At
some stage in Mr Pitsoe’s life he used the surname Phale and
later used the surname Pitsoe. Phale is the surname of his

stepfather and Pitsoe is his mother’s cousin’s surname
which he used from the time when he lived with his mother’s

cousin in
former
Bophuthatswana.
3
In
the High Court, Lamont J granted an order consolidating the Tsebe
and Phale matters.
4
This
refers to the purpose of the two
applications
as
at the hearing of the applications before the High Court where some
orders that had been asked for in the Notices of Motion
were
abandoned.
5
The
Full Court consisted of Mojapelo DJP, Claassen J and Bizos AJ.
6
The
order that was made by the High Court in both cases 27682/10 and
51010/10 was in the following terms:
“
1. Declaring the deportation and/or extradition
and/or removal of the applicant to the Republic of Botswana unlawful
and unconstitutional,
to the extent that such deportation and/or
extradition and/or removal be carried out without the written
assurance from the Government
of Botswana that the applicant will
not face the death penalty there under any circumstance.
2. Prohibiting the respondents from taking any action
whatsoever to cause the applicant to be deported, extradited or
removed
from South Africa to Botswana until and unless the
Government of the Republic of Botswana provides a written assurance
to the
respondents that the applicant will not be subject to the
death penalty in Botswana under any circumstances.
3. Directing the first and second respondent and any
other party who opposed the relief sought herein to pay the
applicants’
costs inclusive of the cost of two counsel.
4. The counter-applications are dismissed with costs
which are to include the costs of two counsel.”
The
judgment of the Full Court has been reported as
Tsebe
and Another v Minister of Home Affairs and Others; Pitsoe v Minister
of Home Affairs and Others
2012 (1)
BCLR 77
(GSJ) (The High Court judgment)
.
7
Act
67 of 1962.
8
In
so far as it is relevant,
section 11 of the EA
reads as follows:
“
The Minister may—
…
(b) order that a person shall not be surrendered:
…
(iii) at all, or before the expiration of a period
fixed by the Minister, if he or she is satisfied that by reason of
the trivial
nature of the offence or by reason of the surrender not
being required in good faith or in the interest of justice, or that
for
any other reason it would, having regard to the distance, the
facilities for communication and to all the circumstances of the

case, be unjust or unreasonable or too severe a punishment to
surrender the person concerned.”
9
[2001]
ZACC 18
;
2001 (3) SA 893
(CC);
2001 (7) BCLR 685
(CC). As to what was decided in
Mohamed
,
see below at [25].
10
Act
13 of 2002. Section
32
(2) of the IA reads:
“Any illegal foreigner shall be deported.”
11
High
Court judgment above n 6 at para 3.
12
Id
at para 98.
13
Id
at paras 99-100.
14
See
below at [28].
15
See
below at [30].
16
Mohamed
above n 9 at paras 58 and 60.
17
Id
at para 60.
18
Id
at paras 37, 58 and 60
.
19
Section
1 of the Constitution.
20
Section
2 of the Constitution.
21
For
example, the Protocol on Combating Illicit Drugs which came into
operation on 20 March 1999; the Protocol on Politics, Defence
and
Security Co-operation which came into force on 2 March 2004; the
Protocol on the Control of Firearms, Ammunition and Other
Related
Materials, which came into force on 8 November 2004; the Protocol on
Mutual Legal Assistance in Criminal Matters which
came into force on
1 March 2007; and the SADC Mutual Defence Pact which came into force
on 17 August 2008.
22
Section
26(1) of the Penal Code of Botswana.
23
See
above n 8.
24
S
v Makwanyane and Another
[1995] ZACC
3
;
1995 (3) SA 391
(CC);
1995 (6) BCLR 665
(CC) (
Makwanyane
).
25
The
position adopted by the first democratically elected South African
government towards the death penalty at the hearing of
the
Makwanyane
case
was that the death penalty was unconstitutional and should be
declared invalid. See para 11 of Chaskalson P’s judgment
in
Makwanyane
.
26
Section
9 of the interim Constitution provided: “Every person shall
have the right to life.” Section 10 of the interim

Constitution provided: “Every person shall have the right to
respect for and protection of his or her dignity.” Section

11(2) of the interim Constitution read thus: “No person shall
be subject to torture of any kind, whether physical, mental
or
emotional, nor shall any person be subject to cruel, inhuman or
degrading treatment or punishment.”
27
Makwanyane
above n 24 at para 144.
28
Id
at para 95.
29
Mohamed
above n 9 at paras 48, 54, and 58-60.
30
Id
at para 52.
31
Id
at para 48.
32
Id
at para 52.
33
Id
at para
53
.
34
A
retentionist State is a State that has retained the death penalty.
35
The
proposition that the test is a real risk is supported by the fact
that, after quoting from
Soering v United Kingdom
[1989] ECHR 14
;
(1989) 11
EHRR 439
(
Soering
);
Hilal v United Kingdom
[2001] ECHR 230
;
(2001) 33
EHRR 31
(
Hilal
); and
Chahal v United Kingdom
[1996] ECHR 54
;
(1996) 23
EHRR 413
(
Chahal
), all of which referred to “a real
risk”, this Court in
Mohamed
went on to say at para 58:
“
These cases are consistent
with the weight that our Constitution gives to the spirit, purport
and objects of the Bill of Rights
and the positive obligation that
it imposes on the State to ‘protect, promote and fulfil the
rights in the Bill of Rights’.”
(Footnotes omitted.)
See
Mohamed
above n 9 at paras 55-9.
36
The
foreign cases included
United States v Burns
2001 CSC 7
;
[2001] 1 RCS
283
;
Kindler v Canada (Minister of Justice)
[1991] 2 RCS 779
;
Reference re Ng Extradition (Canada)
(1991) 6 CRR (2d) 252;
Halm v Canada (Minister of Employment and Immigration)
(TD)
1996 1 F.C. 547
;
R v Brixton Prison (Governor), ex parte
Soblen
(1962) 3 All ER 641 (CA);
Soering
above n 35;
Hilal
above n 35; and
Chahal
above n 35.
37
Section
7 of the Constitution.
38
[2004]
ZACC 5
;
2005 (4) SA 235
(CC);
2004 (10) BCLR 1009
(CC).
39
Id
at para 66.
40
That
was the term used by counsel in argument.
41
Mohamed
above n 9 at para 42.
42
Id
at para 52. It was accepted in
Mohamed
(at paras 47 and 52)
that, like all rights in the Bill of Rights, these rights are also
subject to the limitation contained in
section 36 of the
Constitution.
43
Section
53 of the Constitution of Botswana.
44
Section
34 of the Constitution reads:
“
Everyone has the right to
have any dispute that can be resolved by the application of law
decided in a fair public hearing before
a court or, where
appropriate, another independent and impartial tribunal or forum.”
45
Mohamed
above n 9 at para 42.
46
Id.
47
[2001]
ZACC 22
;
2001 (4) SA 938
(CC);
2001 (10) BCLR 995
(CC) (
Carmichele
).
48
Section
9
of the
Extradition Amendment Act 77 of 1996
.
49
Section
32(2)
of the IA. See above n 10.
50
Section
1
of the IA defines “deport” or “deportation”
as “the action or procedure aimed at causing an illegal

foreigner to leave the Republic” in terms of the IA
.
Section 49(1)(b)
of the IA provides that:
“
Any illegal foreigner who fails to depart when
so ordered by the Director-General, shall be guilty of an offence
and liable on
conviction to a fine or to imprisonment not exceeding
nine months.”
51
Act
12 of
2004.
52
Act
27
of 2002.
53
High
Court judgment above n 6 at paras 102-9.
54
This
does not necessarily include a war situation: see
Makwanyane
above n 24 at para 149.
55
Tsebe
and Another v Minister of Home Affairs and Others; Phale v Minister
of Home Affairs and Others
2012 (1) BCLR 77
(GSJ).
56
Mr
Phale apparently used the surname Pitsoe after he came to South
Africa.
57
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) (
Mohamed
).
58
Regrettably,
Mr Tsebe died before the application was heard
but Lawyers for Human Rights who were Mr Tsebe’s attorneys,
along with the
Society for the Abolition of the Death Penalty in
South Africa decided to proceed because of the public importance of
the issues
raised in this case and its relevance for people like Mr
Tsebe and Mr Phale.
59
The
initial positions of the Ministers with regard to Mr Phale are
unclear. See High Court judgment above n 53 at paras 46-8.
60
The
request for the assurance in the case of Mr Tsebe was made at the
time when Mr E Surty was the Justice Minister, whereas extradition

issues in relation to Mr Phale were dealt with by the present
Justice Minister, Mr JT Radebe. It would seem that the two Justice

Ministers differed on the meaning and impact of
Mohamed
.
61
The
Justice Ministry’s stance on Mr Tsebe and Mr Phales’s
deportation was hardly positive either. Initially, at a
time when
the former Justice Minister was in office extradition was opposed.
Later, in the face of the complaint of Mr Tsebe
and Mr Phale’s
lawyers about their imminent deportation, the Justice Minister,
currently in office took the stance that
the matter was “out
of his hands”.
62
See
generally
De Lacy and Another v SA Post Office
[2011] ZACC
17
;
2011 (9) BCLR 905
(CC) at para 50;
Lufuno Mphaphuli &
Associates (Pty) Ltd v Andrews and Another
[2009] ZACC 6
;
2009
(4) SA 529
(CC);
2009 (6) BCLR 527
(CC) at para 22;
S v Boesak
[2000] ZACC 25
;
2001 (1) SA 912
(CC);
2001 (1) BCLR 36
(CC) at para
12;
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;
Bruce and Another v Fleecytex Johannesburg CC and Others
[1998] ZACC 3
;
1998 (2) SA 1143
(CC);
1998 (4) BCLR 415
(CC) at
paras 6-7; and
S v Pennington and Another
[1997] ZACC 10
;
1997 (4) SA 1076
(CC);
1997 (10) BCLR 1413
(CC) at paras 44 and 51.
63
See
Mohamed
above n 53 at paras 60, 70-1 and 73.
64
Act
67 of 1962.