Mohamed and Another v Presdient of the Republic of South Africa and Others

• Jurisdiction: South Africa
• Judge: Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ, Somyalo AJ
• Judgment Date: 28 May 2001
• Citation: 2001 (2) SACR 66 (CC)
• Hearing Date: 10 May 2001
• Counsel: M A Albertus SC (with him A Schippers) for the applicants (appellants). H P Viljoen SC (with him N Bawa) for the respondents. A Katz and R Paschke as amici curiae.
• Court: Constitutional Court

Mohamed and Another v Presdient of the Republic of South Africa and Others
2001 (2) SACR 66 (CC)

2001 (2) SACR p66

Citation	2001 (2) SACR 66 (CC)
Court	Constitutional Court
Judge	Chaskalson P, Ackermann J, Goldstone J, Kriegler J, Madala J, Mokgoro J, Ngcobo J, Sachs J, Yacoob J, Madlanga AJ, Somyalo AJ
Heard	May 10, 2001
Judgment	May 28, 2001
Counsel	M A Albertus SC (with him A Schippers) for the applicants (appellants).; H P Viljoen SC (with him N Bawa) for the respondents.; A Katz and R Paschke as amici curiae.

Flynote : Sleutelwoorde

Fundamental rights — Right to dignity — Infringement of — What constitutes — Illegal immigrant handed over to authorities in foreign country of which he was not a national to stand trial there on C a capital charge — No valid extradition, deportation or other authority in law for removal from country having taken place — Applicant's right to dignity infringed.

Fundamental rights — Enforcement of — Application for order to compel government to request that death penalty not be imposed by foreign court — State having co-operated in unlawful handing over of applicant to foreign government in violation of applicant's rights to D dignity, life and right not to be treated or punished in cruel, inhuman or degrading manner — Court making such order.

Extradition — Illegal extradition — State having co-operated in unlawful handing over of applicant to foreign government in violation of applicant's rights to dignity, life and right not to be E treated or punished in cruel, inhuman or degrading manner — No valid extradition, deportation or other authority in law for removal from country having taken place — Court making order compelling State to request foreign court not to impose death penalty. F

Headnote : Kopnota

The first applicant, who was standing trial on capital charges in a federal court in New York, applied for an order in the Cape Provincial Division declaring his arrest, detention, and handing over by the South African authorities to the agents of the United States and his removal by them to the United States to be in breach of the law and an order '[d]irecting the Government of the Republic of South Africa to G 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 the first applicant' should he be convicted in the criminal trial. It appeared that the first applicant was wanted by the United States' authorities in connection with attacks on the United States embassy in Dar es Salaam in 1998. The H first applicant was a Tanzanian national who had left Tanzania the day after the explosion at the embassy in Dar es Salaam and had come to South Africa via Mocambique. Once he had arrived in Cape Town he applied for asylum on spurious grounds. Whilst his application for asylum was pending, an agent of the FBI discovered his application at the offices of the immigration officer. When the first applicant arrived to renew his temporary residence permit he was arrested by I officials of the Department of Home Affairs and taken to a holding facility at Cape Town International Airport. He was questioned by officials of the department and confessed that he was in possession of a false passport. He was then handed over to agents of the FBI and interrogated by them over a period of two days. Immigration officials and agents of the FBI then searched the lodgings of the first J

2001 (2) SACR p67

applicant at the home of the second applicant. The latter was informed that he A could not have access to the first applicant as the latter was in a restricted area at the airport before being sent back to Tanzania. After being questioned later by South African police in connection with local terrorist attacks the first applicant was handed to the United States authorities who had a plane specially sent to collect him and take him to New York where he was indicted to stand trial. B

The Provincial Division dismissed the application and the applicants then applied for leave to appeal on an urgent basis against the decision.

On appeal it was contended for the applicants that the South African authorities had breached the provisions of the Aliens Control Act 96 of 1991 ('the Act') and the regulations published thereunder. It was contended that the first applicant's constitutional right to life, to dignity and not to be subjected to cruel, inhuman or degrading C punishment had allegedly been infringed. From the outset, the case made out by the applicants was that such delivery was in breach of the Act and infringed the first applicant's constitutional rights. The applicants challenged the propriety of the delivery and removal, saying they constituted a disguised extradition which infringed the first applicant's right to claim that the South African authorities stipulate as a condition of his removal to the United States that an D undertaking be given by the United States authorities that the death penalty would not be sought or carried out.

The Court held that it appeared that there had been no warning by the arresting authorities as to the protection against self-incrimination or the right to remain silent. There was no mention of the right to legal representation, nor that any such rights were waived. Neither was E there any intimation that the bar placed on removal from South Africa within 72 hours of a deportee's arrest, contained in s 52 of the Act, was drawn to the first applicant's attention.

The inference was well nigh irresistible that the second applicant was fobbed off to ensure that the first applicant would continue to be denied access to a lawyer and would remain incommunicado. The handing F over of the first applicant for removal to the United States, as well as the subsequent removal, were on the respondents' own showing in breach of the Act and infringed the first applicant's constitutional rights.

The Court held that the powers of the President under the present Constitution originating from the royal prerogative were those in s 84(2). This subsection did not provide for any power to deport an G alien.

As to the argument whether the provisions of reg 23 of the regulations, promulgated under the provisions of s 56 were peremptory or not: Regulation 23 read as follows:

'23.

Any person to be removed from the Republic under the Act, shall -

(a)

if he or she is the holder of a passport issued by any other country or territory, be removed to that country or H territory; or

(b)

if he or she is not the holder of such a passport -

(i)

be removed to the country or territory of which he or she is a citizen or national; or

(ii)

and if he or she is stateless, be removed to the country or territory where he or she has a right of domicile.' I

The Court held that the approach that the provisions were peremptory was too narrow: the additional question was whether the destinations enumerated in reg 23 constituted a closed category. The word 'shall', which introduced the provisions of paras (a) and (b) dealing with what was to be done with a person who 'is to be removed from the Republic under the Act', was clearly mandatory in form and there was nothing in the context to indicate J

2001 (2) SACR p68

the contrary. Once it had been decided to remove such person and such A decision persisted, whether the decision to remove was obligatory or permissive, the state had no discretion but to remove the person to the destination as prescribed in paras (a) and (b). The further question, however, was whether the state had any power regarding the determination of the destination to which the person is to be removed under this regulation over and above that provided for in the regulation. B

The Court held that it clearly had not. The state had no remaining prerogative power to deport, for such power was not included in s 84(2) of the Constitution. Its power to deport and determine the destination of such deportation could only be found within the four corners of the Act and the regulations. In terms of reg 23 such power was limited, regarding destination, to the places mentioned in paras (a) and (b) thereof and determined in the manner C therein prescribed. In any event it was clear that reg 23 comprehensively covered all possibilities; the person with a passport, the person who is a citizen or national of a country and the stateless person. It covered the field of any common law power the state might have had.

The Court held further that the procedure followed in removing the first applicant to the United States of America was unlawful whether it was characterised as a deportation or an extradition. Moreover, an D obligation on the South African government to secure an assurance that the death penalty would not be imposed on a person whom it caused to be removed from South Africa to another country could not depend on whether the removal was by extradition or deportation. That obligation depended on the facts of the particular case and the provisions of the E Constitution, not on the provisions of the empowering legislation or extradition treaty under which the 'deportation' or 'extradition' was carried out.

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, ss 10 and 11 of the Bill of Rights are implicated: there could be no doubt that the removal of the first applicant to the United States of America posed such a threat. F

If the South African authorities had sought an assurance from the United States against the death sentence being imposed on the first applicant before handing him over to the FBI, there was no reason to believe that such an assurance would not have been given. Had that been the case, the...