Minister of Home Affairs v Tsebe

• Jurisdiction: South Africa
• Judge: Mogoeng CJ,Yacoob ADCJ,Cameron,Froneman,Jafta,Khampepe,Nkabinde,Skweyiya,Van der Westhuizen JJ,Zondo,Maya AJJ
• Judgment Date: 27 July 2012
• Counsel: MTK Moerane SC (with L Gcabashe SC) for the first to fourth applicants in CCT 110/11. M Donen SC (with S Poswa-Lerotholi) for the first and second applicants in CCT 126/11. A Katz SC (with M du Plessis and N Lewis) for the first and second respondents in CCT 110/11 and CCT 126/11. S Budlender (with J Brickhill) for the third respondent in CCT 110/11 and CCT 126/11. P Kennedy SC (with D Simonsz and M Adhikari) for the amicus curiae.
• Docket Number: CCT 110/11 and CCT 126/11 [2012] ZACC 16
• Date: 27 July 2012
• Court: Constitutional Court
• Hearing Date: 23 February 2012
• Citation: 2012 (5) SA 467 (CC)

Zondo AJ (Mogoeng CJ, Jafta J, Khampepe J, Maya AJ and Nkabinde J concurring): G

Introduction

[1] The applicants [1] for leave to appeal are the Minister of Justice and H 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

Zondo AJ (Mogoeng CJ, Jafta J, Khampepe J, Maya AJ and Nkabinde J concurring)

include Mr Emmanuel Tsebe and Mr Jerry Ofense Pitsoe (Phale). [2] The A 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]

[2] The primary purpose [4] of Mr Tsebe and Mr Phale's applications was B 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 C 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.

[3] The Justice Minister and the government brought a counter-application in the high court in which they sought an order declaring in effect D 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.

[4] The applications were heard by a full court. [5] The high court granted E Mr Tsebe and Mr Phale's applications and dismissed the Justice Minister and the government's counter-application. [6]

[5] The applicants now apply for leave to appeal directly to this court against the full court's judgment and order. Before the applications can F

Zondo AJ (Mogoeng CJ, Jafta J, Khampepe J, Maya AJ and Nkabinde J concurring)

A be considered, it is necessary to set out the factual background to the matter.

Background

[6] In July 2008 Mr Tsebe, a national of Botswana, was accused of B 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 C Mr Phale in separate incidents and at separate times, they fled to South Africa.

[7] 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 D 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 and Mr Phale's flight from Botswana, the authorities in Botswana issued warrants of arrest against them. Botswana also requested South Africa to extradite E the men to Botswana to face murder charges.

[8] 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 F 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 Magistrates' Court a number of times in connection with his extradition proceedings.

G [9] An extradition inquiry was initiated in the Mokopane Magistrates' 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

Zondo AJ (Mogoeng CJ, Jafta J, Khampepe J, Maya AJ and Nkabinde J concurring)

Africa would not extradite Mr Tsebe unless Botswana gave South Africa A 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.

[10] A meeting between the current Justice Minister and his counterpart B 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 C jurisdiction to try people for crimes committed outside its borders. On 11 March 2009 the extradition inquiry in the Mokopane Magistrates' Court was completed. The magistrate found that Mr Tsebe was liable for extradition.

[11] On 25 August 2009 the Justice Minister issued an order in terms of D s 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 s 11(b)(iii) of the EA and the decision of this court in 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) [9] (Mohamed). E

[12] 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, F 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

Zondo AJ (Mogoeng CJ, Jafta J, Khampepe J, Maya AJ and Nkabinde J concurring)

A 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.

B [13] Although the Justice Minister had issued a non-extradition order in respect of Mr Tsebe, he subsequently deposed to an affidavit opposing Mr Tsebe 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 C 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 D 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.

E [14] 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 F 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 G remained an illegal foreigner and the IA required that he be deported.

[15] 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 H 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 I 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.

[16] After his...