Minister of Home Affairs and Others v Tsebe and Others

• Jurisdiction: South Africa
• Citation: 2012 (5) SA 467 (CC)

Minister of Home Affairs and Others v Tsebe and Others
2012 (5) SA 467 (CC)

2012 (5) SA p467

Citation	2012 (5) SA 467 (CC)
Case No	CCT 110/11 and CCT 126/11; [2012] ZACC 16
Court	Constitutional Court
Judge	Mogoeng CJ, Yacoob ADCJ, Cameron J, Froneman J, Jafta J, Khampepe J, Maya AJ, Nkabinde J, Skweyiya J, Van der Westhuizen J and Zondo AJ
Heard	February 23, 2012
Judgment	July 27, 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.

Flynote : Sleutelwoorde B

Immigration — Aliens — Deportation — Deportation for trial on offence carrying death penalty — State may not extradite or deport person if this will expose him to real risk of death penalty — State may do so if foreign state gives C assurance that it will not impose, or, if it does impose, will not execute, death penalty.

Headnote : Kopnota

The state may not extradite or deport a person if this will expose him to a real risk of the imposition and execution of the death penalty. If the foreign state D assures that it will not impose the death penalty, or, if it imposes it, that it will not execute it, then there is no such risk, and the state may deport or extradite him. (Paragraphs [2], [43] and [53] at 469B – C, 480E – 481A and 484B – G.)

Cases Considered

Annotations: E

Case law

Southern Africa

Bruce and Another v Fleecytex Johannesburg CC and Others 1998 (2) SA 1143 (CC) (1998 (4) BCLR 415; [1998] ZACC 3): referred to

Carmichele v Minister of Safety and Security and Another (Centre for Applied Legal Studies Intervening) F 2001 (4) SA 938 (CC) (2002 (1) SACR 79; 2001 (10) BCLR 995; [2001] ZACC 22): referred to

De Lacy and Another v SA Post Office 2011 (9) BCLR 905 (CC) ([2011] ZACC 17): referred to

Kaunda and Others v President of the Republic of South Africa and Others 2005 (4) SA 235 (CC) (2005 (1) SACR 111; 2004 (10) BCLR 1009; G [2004] ZACC 5): referred to

Lufuno Mphaphuli & Associates (Pty) Ltd v Andrews and Another 2009 (4) SA 529 (CC) (2009 (6) BCLR 527; [2009] ZACC 6): referred to

Member of the Executive Council for Development Planning and Local Government, Gauteng v Democratic Party and Others 1998 (4) SA 1157 (CC) (1998 (7) BCLR 855; [1998] ZACC 9): referred to H

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 (3) SA 893 (CC) (2001 (2) SACR 66; 2001 (7) BCLR 685; [2001] ZACC 18): considered and applied

S v Boesak 2001 (1) SA 912 (CC) (2001 (1) SACR 1; 2001 (1) BCLR 36; [2000] ZACC 25): referred to I

S v Makwanyane and Another 1995 (3) SA 391 (CC) (1995 (2) SACR 1; 1995 (6) BCLR 665; [1995] ZACC 3): referred to

S v Pennington and Another 1997 (4) SA 1076 (CC) (1999 (2) SACR 329; 1997 (10) BCLR 1413; [1997] ZACC 10): referred to

Tsebe and Another v Minister of Home Affairs and Others; Pitsoe v Minister of Home Affairs and Others 2012 (1) BCLR 77 (GSJ): upheld on appeal. J

2012 (5) SA p468

Canada A

Halm v Canada (Minister of Employment and Immigration) (TD) [1996] 1 FC 547: referred to

Kindler v Canada (Minister of Justice) (1991) 6 CRR (2d) 193 (SCC) (67 CCC (3d) 1; [1991] 2 SCR 779): referred to

Reference re Ng Extradition (Canada) (1991) 6 CRR 252: referred to

United States v Burns [2001] 1 SCR 283: referred to. B

England

R v Brixton Prison (Governor), Ex parte Soblen [1963] 2 QB 243 (CA) ([1962] 3 All ER 641): referred to.

European Court of Human Rights C

Chahal v United Kingdom (1996) 23 EHRR 413: referred to

Hilal v United Kingdom (2001) 33 EHRR 31: referred to

Soering v United Kingdom (1989) 11 EHRR 439: referred to.

Case Information

D An appeal against a decision of the South Gauteng High Court, Johannesburg (Mojapelo DJP, Claassen J and Bizos AJ).

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. E

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.

Cur adv vult. F

Postea (July 27).

Judgment

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

2012 (5) SA p469

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

2012 (5) SA p470

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

2012 (5) SA p471

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...