Kaunda and Others v President of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Citation: 2005 (1) SACR 111 (CC)

Kaunda and Others v President of the Republic of South Africa and Others
2005 (1) SACR 111 (CC)

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Citation	2005 (1) SACR 111 (CC)
Case No	CCT 23/04
Court	Constitutional Court
Judge	Chaskalson CJ, Langa DCJ, Mokgoro J, Moseneke J, Ngcobo J, O'Regan J, Sachs J, Skweyiya J, Van der Westhuizen J and Yacoob J
Heard	July 19, 2004; July 20, 2004
Judgment	August 4, 2004
Counsel	Z F Joubert SC (with him J Pienaar and T Price) for the applicants.; I A M Semenya SC and I V Maleka (with them M Mphaga and E Mokutu) for the respondents.; W Trengove SC (with Anton Katz and M du Plessis) for the amicus curiae.

Flynote : Sleutelwoorde

Fundamental rights — Enforcement of — Protection of citizens outside B country — South African nationals arrested and detained in Zimbabwe — Diplomatic protection of nationals — Not recognised by international law as human C right and can't be enforced as such — Diplomatic protection remaining prerogative of State to be exercised at its discretion — No right to claim from government to ensure that rights of South African citizens in terms of South African Bill of Rights at all times respected in foreign country — South African nationals facing adverse State action in foreign country, however, entitled to request South African government to provide D protection against acts which violate accepted norms of international law — Government then obliged to consider such requests and deal with them appropriately — Decisions made by Government on such matters subject to constitutional control — Application dismissed.

Fundamental rights — Right to life — Infringement of — Fear of E death sentence being imposed in foreign country — Application for order that government be directed as matter of extreme urgency to seek assurance from government of foreign country that death penalty would not be imposed — Government's policy on issue of capital punishment being that it made representations concerning imposition of such punishment only if and when such punishment was imposed on South African citizen — Applicants entitled to benefit of F policy, and if capital punishment were to be imposed on them, then consistently with its policy, government will have to make representations on their behalf — Applicants' claim, therefore, having to be dismissed.

Extradition — Right to request — South African nationals arrested and G

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detained in foreign country — Fear of not having fair A trial in foreign country, as well as death sentence being imposed if convicted — Application for order that government take steps to seek extradition of applicants to South Africa — In casu prosecuting authority averring sufficient evidence not yet present against applicants to take decision to institute prosecution — Government lacking evidence B necessary to apply for applicants' extradition — Not necessary to decide question whether Court having power to order government to apply for extradition.

Court — Powers of — Separation of powers — Between Judiciary and Executive — South African nationals arrested and detained in foreign country — Applicants requesting that Court order government to take action at diplomatic level to ensure C that rights they claimed to have under South African Constitution were respected by foreign governments — Decision as to protection given was aspect of foreign policy which was function of Executive — Diplomats being better placed to decide on and engage in delicate and sensitive negotiations — Courts ill-equipped to make such decisions which could be harmed by court D proceedings and publicity — Courts can require government to deal with matter properly where government refusing to consider legitimate request, or dealing with it in bad faith or irrationally.

Headnote : Kopnota

The applicants were a group of South African citizens arrested in Zimbabwe and detained in Zimbabwe on a variety of charges. The E applicants feared that they might be extradited from Zimbabwe to Equatorial Guinea and put on trial, accused of being mercenaries and plotting a coup against the President of Equatorial Guinea. They contended that if this happened they would not get a fair trial and, if convicted, that they faced the risk of being sentenced to death. The applicants initially approached a High Court for orders aimed at F 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 were at all times respected and protected in Zimbabwe and Equatorial Guinea. The application was dismissed in the High Court, whereupon the applicants lodged an urgent application for leave to appeal directly to the Constitutional Court. The applicants' primary aim was avoiding being G extradited to Equatorial Guinea and being tried in Zimbabwe or Equatorial Guinea. To that end their first claim was to require the South African government to take steps to have them extradited to South Africa so that any trial they might have could be conducted there. The other claims were directed at their conditions of detention, and to H trial procedures should they be put on trial in Zimbabwe or Equatorial Guinea. The constitutional issues raised the question whether the Constitution of the Republic of South Africa Act 108 of 1996 bound the State to take steps to protect the applicants in relation to the complaints they had concerning their conditions of detention in Zimbabwe and the prosecution they faced there, as well as the possibility of their being extradited to Equatorial Guinea to face I charges which could result, if convicted, in their being sentenced to death. The issues involved the reach of the Constitution, the relationship between the Judiciary and the Executive and the separation of powers between them. The applicants asserted that they had rights under the Constitution entitling them to make such demands, that the government had failed to comply with their demands and that in failing to do so it had breached their constitutional rights. The relief J

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they claimed was in effect a mandamus ordering the government to A take action at a diplomatic level to ensure that the rights they claimed to have under the South African Constitution were respected by the foreign governments.

Held, that the application had raised complex questions of law, of vital importance not only to the applicants but also to society as a whole. Therefore the application for leave to appeal directly to the Constitutional Court had to be granted. (Paragraph [144] at B 152j - 153a.)

Held, further, that the applicants could not have based their claims under customary international law, as the prevailing view was that diplomatic protection was not recognised by international law as a human right and could not be enforced as such. Diplomatic protection remained the prerogative of the State, to be exercised at its discretion. (Paragraph [29] at 126b - c.) C

Held, further, that there might be special circumstances where the law of a State was applicable to nationals beyond that State's borders, but only if the application of the law did not interfere with the sovereignty of other States. For South Africa to assume an obligation that entitled its nationals to demand, and obliged it to take action to ensure, that laws and conduct of a foreign State D and its officials met not only the requirements of the foreign State's own laws, but also the rights that South African nationals held under the Constitution would be inconsistent with the principle of State sovereignty. Section 7(2) of the Constitution could not be construed as imposing a positive obligation on the government to do that. (Paragraph [44] at 129h - 130b.) E

Held, further, that, reflected in the Constitution, the nation had been committed to uphold and protect fundamental rights which were the cornerstone of South African democracy. A common citizenship and that all citizens were equally entitled to the rights, privileges and benefits of citizenship, was recognised. While there was no enforceable right to diplomatic protection, South African citizens were entitled to request South Africa for protection under F international law against wrongful acts of a foreign State. They were not in a position to invoke international law themselves and were obliged to seek protection through the State of which they were nationals. While the State was entitled but not obliged under international law to take such action, it invariably acted only if requested by the national to do so. (Paragraphs [60] - [61] at 133g - 134b.) G

Held, further, that South African citizenship requirements were such that citizens almost invariably, if not always, would be nationals of South Africa. They were entitled, as such, to request the protection of South Africa in a foreign country in case of need. Nationality was an incident of their citizenship that entitled them to the privilege or benefit of making such a request. The citizen was then entitled to have the request considered and responded to appropriately. (Paragraphs [62] - [63] at 134c - e.) H

Held, further, that the founding values of the Constitution included human dignity, equality and the advancement of human rights and freedoms. Equality was reflected in the principle of equal citizenship demanded by s 3. The advancement of human rights and freedoms was central to the Constitution itself. It was a thread that ran throughout the Constitution and informed the manner in which the I government was required to exercise its powers. (Paragraphs [65] - [66] at 134g - 135b.)

Held, further, that the entitlement to request diplomatic protection, which was part of the...