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)

• Jurisdiction: South Africa
• Judge: Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ and Somyalo AJ
• Judgment Date: 28 May 2001
• Court: Constitutional Court
• Docket Number: CCT 17/01
• Date: 28 May 2001
• Hearing Date: 10 May 2001
• Counsel: M A Albertus SC (with A Schippers) for the appellants. H P Viljoen SC (with N Bawa) for the respondents. A F Katz (with R Paschke) for the amici curiae.
• Citation: 2001 (3) SA 893 (CC)

The court:

[1] The first applicant before this Court, Mr Khalfan Khamis Mohamed (Mohamed), is currently standing trial on a number of capital charges in a Federal Court in New York. He alleges that the relief H sought in the proceedings in this Court could have a bearing on the criminal trial which started some months ago. For that reason the preliminary steps for a hearing in this Court were foreshortened and, with the co-operation of counsel for the parties, set-down was expedited. [1] It is necessary to describe the nature of each of the two cases and to explain their interrelationship. I

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[2] The case before this Court is an urgent application for leave to appeal against a judgment in the Cape of Good Hope High A Court. [2] In that Court [3] the applicants sought declaratory and mandatory relief against the Government [4] arising out of Mohamed's arrest in Cape Town on 5 October 1999, his subsequent detention and interrogation there by South African immigration officers and his handing over to agents of the United States Federal Bureau of Investigation (the FBI) for interrogation and removal two days B later to New York, there to stand trial.

[3] The argument advanced on behalf of the respective parties will be analysed in detail later. Suffice it to say by way of introduction that the main contention on behalf of the applicants (supported by the amici C curiae [5] ) was that Mohamed's arrest, detention, and handing over by the South African authorities to the FBI agents and his removal by them to the United States were part and parcel of a disguised extradition in breach of the law. More particularly the South African authorities were said to have breached the provisions of the Aliens Control Act [6] (the Act) and the regulations published thereunder. [7] Even more pertinently, Mohamed's constitutional right to life, to D dignity and not to be subjected to cruel, inhuman or degrading punishment [8] had allegedly been infringed.

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[4] The factual substratum of the case for the applicants was gleaned from documents that had been made available to their legal A representatives pursuant to two interlocutory orders on the government for their disclosure. The thrust of the consequential relief the applicants unsuccessfully sought in the High Court and pursued in this Court was a declaration to the effect that - B

(i)

the arrest, detention, interrogation and handing over of Mohamed to the FBI agents were unlawful and unconstitutional; and

(ii)

the respondents breached Mohamed's constitutional rights by handing him over to the custody of the United States without obtaining an assurance from the United States government that it would not impose or carry out the death penalty on him if convicted. C

[4] The mandatory relief sought pursuant to this declaration was an order '(d)irecting the Government of the Republic of South Africa to submit a written request through diplomatic channels to the Government of the United States of America, that the death penalty not be sought, imposed nor carried out upon (Mohamed)' should he be D convicted in the criminal trial.

[5] The crux of the government's contentions, which carried the day in the Court below, was that Mohamed was an illegal immigrant whom the immigration authorities had properly decided to deport and whose E deportation was mandated by the Act. Such deviations as there might have been from the literal prescripts of the Act or the regulations were of no legal consequence. Nor did the collaboration between the South African officials and the FBI agents whereby Mohamed was eventually removed to the United States make any difference to his status or his liability to deportation. Moreover, so the Court held, on F the evidence of the immigration officials, which could not be rejected in motion proceedings, Mohamed had been duly apprised of his rights and had freely elected to accompany the FBI officers without delay to the United States, there to stand trial with his comrades. Finally, so the government contended and the Court found, a Court had no power to issue G the mandamus sought, which would in any event have no efficacy. On 20 April 2001 the High Court delivered its judgment, comprehensively dismissing the contentions advanced on behalf of the applicants and refusing the relief they had sought. H

[6] That is when the applicants approached this Court as a matter of urgency, asking for condonation for non-compliance with the ordinary procedures for appeals to this Court and for leave to bring an appeal directly here. [9] On the face of it there was manifest urgency and, with the active co-operation of all concerned, the matter was ripe for hearing I

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within three weeks of delivery of the judgment below. The Court is grateful to all who made A this possible. With this description of the nature of and backdrop to the proceedings in this Court, we turn to outline the other case which is currently under way in New York.

[7] That case, a criminal trial, arises from events that took place on 7 August 1998 in Nairobi and Dar es Salaam. That morning, in quick succession, the United States embassies in those two cities B were rocked by violent explosions that all but destroyed them. In Nairobi 212 were killed and more than 4 500 injured and in Dar es Salaam 11 were killed and 85 injured. A federal grand jury had been sitting in New York since the mid-nineties investigating the activities of an organisation called Al Qaeda, founded, led and financed by a C Saudi multi-millionaire, Usama bin Laden. The grand jury concluded that the attacks on the two embassies were the work of Al Qaeda in its ongoing international campaign of terror against the United States and its allies.

[8] Later, the grand jury indicted 15 men on a total of 267 counts, including conspiracy to murder, kidnap, bomb and maim United D States nationals; conspiracy to destroy United States buildings, property and national defence facilities; bombing of the two embassies and murder of the 223 persons there killed. Of the 15 named and indicted conspirators, four are currently on trial: Mohamed and three other men. Mohamed is a Tanzanian national by birth and lived there E until recently. According to the indictment, he procured a false passport in May 1998, rented a house, bought a motor vehicle for use by the conspirators and actively participated in the preparations for the bombing of the Dar es Salaam embassy. F

[9] Mohamed obtained a visitor's visa from the South African High Commission in Dar es Salaam the day before the explosions and left Tanzania by road the day after. Travelling via Mozambique to South Africa he entered the country on 16 August 1998 and travelled to Cape Town where he obtained employment - and later lodgings - with the second applicant, Mr Abdurahman Dalvie (Dalvie). In due course he G applied for asylum - under his assumed name and on spurious grounds - and was afforded enhanced temporary residence status. He was issued with a temporary residence permit that had to be renewed periodically pending the decision on his application for asylum. As far as is known, Mohamed lived and worked quietly in Cape Town during the ensuing year while his H application was being processed.

[10] In the meantime, however, Mohamed had been indicted by the grand jury and on 17 December 1998 a warrant for his arrest was issued out of the Federal District Court for the Southern District of New York on charges of 'murder, murder conspiracy [and] attack on US facility'. The following month Interpol, Washington DC, at the request I of the FBI, put out an international 'wanted' notice with photographs and a

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description of Mohamed, listing 'murder of US nationals outside the United States; conspiracy to murder US nationals outside the United A States; attack on a federal facility resulting in death' and cautioning that he should be considered armed and dangerous.

[11] From about 12 August 1999, the South African Police Service and the Department of Home Affairs were aware of the investigation by the FBI into the bombings of the two American B embassies and were asked to provide it with information concerning another suspect named Ally Hassan Rehani. Then on 30 August 1999 an FBI agent identified Mohamed while searching through the asylum-seekers records in Cape Town with the permission of the seventh respondent, the chief immigration officer, Department of Home Affairs, Cape Town, Mr Christo Terblanche (Terblanche). These records contain C both fingerprints and photographs of applicants for asylum and the agent was able to make the identification despite the pseudonym Mohamed used.

[12] The next day, Terblanche sent the Directorate: Alien Control, Department of Home Affairs Head Office in Pretoria a copy of D the warrant for Mohamed's arrest as well as copies of an associated letter to Interpol and the FBI 'wanted' poster. In the covering letter Terblanche requested that Mohamed be declared a prohibited person as a matter of urgency [10] and stressed that it was of the utmost importance that he be stopped should he try to leave South Africa. E

[13] In the week of 13 September 1999 the second and sixth respondents, the Minister of Justice and Constitutional Development and the National Director of Public Prosecutions ('the Minister' and 'the NDPP' respectively), were in Washington DC for the signing of a new extradition treaty between South Africa and the United States to replace one dating from 1951. A political offence F exception [11] that had been contained in the 1951 treaty was not re-embodied in the new treaty, which has not yet come into force. Also, the new treaty introduced a provision for the surrender of a fugitive with his or her consent without further extradition proceedings. [12]...