OF SOUTH AFRICA................................................'>.............................................................Ninth Respondent
AND CASE NO: 51010/10 In the matter between: JERRY OFENSE PITSOE (PHALE)................................................Applicant and THE MINISTER OF HOME AFFAIRS................................First Respondent THE DIRECTOR-GENERAL, DEPARTMENT
OF HOME AFFAIRS..........................................................Second Respondent BOSASA (PTY) LTD
t/a LEADING PROSPECTS TRADING..............................Third Respondent THE MINISTER OF JUSTICE...........................................Fourth Respondent THE MINISTER OF INTERNATIONAL
RELATIONS AND COOPERATION...................................Fifth Respondent GOVERNMENT OF THE REPUBLIC
OF SOUTH AFRICA..............................................................Sixth Respondent
_______________________________________________________________ J U D G M E N T
We have before us two applications, each having a counter-application. The first application is in Case No. 27682/10 and the second in Case No. 51010/10. We will refer to the first application as the “Tsebe” case and the second as the “Phale” case.
The Tsebe and Phale applications have been consolidated as the claims and counter-applications in both matters are substantially identical.
Both applications concern the obligations of the South African State under the Constitution, Act 108 of 1996, read with international law, regarding the extradition or deportation of a foreign national who is also a fugitive of justice to a State where he or she is at risk of being subjected to the death penalty. The applicants contend that under the Constitution no removal of any sort may occur in such circumstances whereas the respondents contend the contrary. The matter, therefore, concerns the relationship between two African states, The Republic of South Africa (“the RSA”) as the requested state and the Republic of Botswana (“Botswana”) as the requesting state. It will require an interpretation of the extradition treaty in existence between the two states as well as their respective constitutions and domestic laws coupled with an appropriate application of international law.
The applicants contend that the Constitutional Court in Mohamed and Another v President of the RSA and Others 2001 (3) SA 893 (CC) (“Mohamed”) has ruled that an absolute bar exists against any person being extradited or deported from South Africa to another country where a death penalty is a real risk. The respondents on the other hand contend that Mohamed is distinguishable on the facts thus permitting extradition and/or deportation to take place in the circumstances of this case.
In the Tsebe case there are two applicants. Emmanuel Tsebe is the “first applicant” and the Society for the Abolition of the Death Penalty in South Africa is the “second applicant”. The second applicant was granted leave to intervene by order of court.1
The Minister of Home Affairs is the first respondent and the Director-General: Department of Home Affairs is the second respondent in both the Tsebe and Phale cases. In the Tsebe case, Bosasa (Pty) Ltd t/a Leading Prospects Trading, the Minister of Justice, the Minister of International Relations and Cooperation and the Government of the Republic of South Africa are respectively the sixth, seventh, eighth and ninth respondents whereas in the Phale case they are respectively the third, fourth, fifth and sixth respondents. Bosasa (Pty) Ltd and the Minister of International Relations and Cooperation have elected to abide the decision of the court in both instances.2
In the Tsebe case Mr George Masanabo, the Acting Director of Deportations, Ms Ann Mohube, the Acting Deputy Director of the Lindela Holding Facility and Mr Joseph Swartland, the Assistant Director of the Lindela Holding Facility were cited as the third, fourth and fifth respondent respectively.
All the respondents save those mentioned in paragraph , gave notice of intention to oppose the applications.
Mr. Katz SC with Messrs Du Plessis and Lewis, all from the Cape Bar, appeared for Messrs Tsebe and Phale. Mr S Budlender with Mr Brickhill, both from the Johannesburg Bar, appeared for the Society for the Abolition of the Death Penalty. Mr Schippers SC with Ms Mayosi, both from the Cape Bar, appeared for the Minister of Home Affairs and the Minister of International Relations and Cooperation. Mr Donen with Ms Poswa-Lerotholi, also from the Cape Bar appeared for the Minister of Justice and Constitutional Development and the Government of South Africa.
During argument, counsel for all the parties agreed that nothing turns on the application to condone the late filing of documents instituted by the first and second respondents.3 The court can, therefore, accept that all documents are properly before it.
The facts giving rise to the present application are either common cause or not seriously in dispute. The documents and annexures attached to the affidavits speak for themselves and sometimes louder than the deponents! Thus, no credibility issues arise. This is so due to the fact that the real disputes between the parties are legal in nature concerning the proper interpretation of various statutory instruments and the applicable case law.
CHRONOLOGY OF FACTS IN THETSEBE APPLICATION
Mr Tsebe was a Botswana citizen. He died on 28 November 2010, prior to the hearing of this application.4
In view of the fundamental public importance of the issues at stake, all parties and their representatives agreed that the application raised live issues, which should be heard and determined. This court has a discretion to hear questions of law which are likely to arise again as the questions in this case surely would. The applications raise important constitutional issues affecting inter state relations in regard to extradition of fugitives of justice and cannot, therefore, be regarded as moot.5 In any event, the counter-applications are live issues, which have to be determined, including the costs occasioned by the applications and counter-applications.
Mr Tsebe was charged with having brutally murdered his common-law wife on 21 July 2008 by assaulting her with a machete and a stick in Botswana in contravention of section 202 of the Botswana Penal Code. The pathologist, who conducted the post mortem examination, concluded that she died of chop wounds to her head. The gruesome photographs in the papers, amply confirm this conclusion.6 The Botswana Public Prosecutor issued a warrant for his arrest, on 30 July 2008.7
In Botswana the death penalty may be imposed if an accused is convicted of murder without extenuating circumstances.8
When the Botswana Police attempted to arrest Mr Tsebe he fled to South Africa. As such he is a fugitive of justice.
He was arrested on 30 July 2008 by the South African Police on a farm in the Mokopane district, Limpopo. His first appearance in court occurred on 31 July 2008.9 He remained in custody in Mokopane for more than a year until 26 August 2009.
In a written “Apostile” dated 19 August 2008 issued under the Convention De La Haye of 5 October 1961, the Principal Prosecuting Counsel, Mr Merapelo Mokgosi acting under delegated authority from the Botswana Director of Public Prosecutions, Ms L.I. Dambe, formally applied via the appropriate diplomatic channels, for the extradition of Mr Tsebe to Botswana.10 On 28 August 2008 the Department of Foreign Affairs forwarded this extradition application to the Director-General of the Department of Justice and Constitutional Development. 11
Thereafter on 11 November 2008 Mr M E Surty, the then Minister of Justice, responded to the request in the following terms:
“Kindly be advised that I have carefully considered the request for the extradition of Mr Tsebe from the Republic of South Africa to the Republic of Botswana in order to stand trial on a charge of murder. Taking into consideration that the death penalty is the prescribed sentence upon a conviction on a charge of murder, and that no undertaking was attached to the request by the Directorate of Public Prosecutions, which undertaking should state that the Prosecution will not seek the death penalty and, if it is imposed, it will not be executed, I cannot order the surrender of Mr Tsebe to Botswana if found extraditable12. Although the request is yet to be placed before the magistrate who is to do an enquiry, it is advisable to have an undertaking before the magistrate makes a finding as to whether Mr Tsebe is extraditable, or not. This will assist us to process the extradition timeously if the magistrate were to find Mr Tsebe extraditable. It would be appreciated if the honourable minister can facilitate the making of the said undertaking.”13 [Emphasis added]
Ultimately on 11 December 2008 an extradition enquiry commenced before magistrate Ms A. Swanepoel in the Mokopane Magistrates’ Court.14
After a number of postponements of the enquiry, the magistrate found on 11 March 2009 that Mr Tsebe is liable to be surrendered to the Republic of Botswana.15
In response to the letter by Mr Surty dated 11 November 2008, the Minister for Defence, Justice and Security of Botswana, Mr D.N.Seretse, replied in a letter dated 20 May 2009 as follows:
“The Department of Justice of the Republic of South Africa has been informed on a number of occasions that the Cabinet of Botswana has decided that no such undertaking shall be made as there is no such provision in our laws or the treaty between the two countries to that effect.” [Emphasis added] The letter also requested a meeting to discuss this matter further with the current Minister of Justice, Mr Radebe.16 It may be noticed, at this early stage already, that an executive “decision” seems to have influenced the independence of the prosecution in Botswana as to whether or not it should ask for a death sentence to be imposed in the event of Tsebe’s conviction. We will return to this aspect at a later stage in this judgment.
Recognising the conundrum caused by this stalemate between South Africa and Botswana, the following observations were recorded in an inter departmental memorandum addressed to the seventh respondent dated 9 June 2009 regarding Mr Tsebe17:
“13.14 On a number of occasions officials in the Ministry for Defence, Justice and Security of Botswana have expressed the view that the undertaking undermines the legal system of Botswana. On the other hand, if South Africa does not request an undertaking, the South African legal system will also be undermined. In practice this issue, which is often encountered with other countries still to abolish the death penalty, is always addressed by the Department by requesting an undertaking from the requesting State. Requesting States generally provide undertakings. This is the practice across the globe since a compromise is the only way to deal with the issue. Perhaps a permanent solution would be to amend the Treaty to provide for such an undertaking.” [Emphasis added]
A meeting was arranged for 14 July 2009 at the offices of the seventh respondent in Pretoria. Confirmation of what was discussed between the parties appears in a letter written by the seventh respondent dated 4 August 2009 to Mr D.N. Seretse. In this letter the seventh respondent records the following:
“You will recall that after discussing possible ways of assisting your Government regarding the above request, it was agreed that the Government of South Africa will not be in a position to extradite Mr Emmanuel Tsebe to your country to stand trial on the charge of murder because your Government cannot make the required undertaking to the Government of South Africa that your Prosecution will not seek the death penalty upon conviction of Mr Tsebe, and if it is imposed by the court, it will not be executed. Furthermore, it was agreed that the Government of South Africa should prosecute Mr Tsebe before its own courts. It was further agreed that the Extradition Treaty between the Government of South Africa and the Government of the Republic of Botswana be reviewed in line with modern trends.
At the present moment, the Government of South Africa does not have a legal mechanism to prosecute Mr Tsebe. We are considering the development of new legislation or amendment of existing legislation to give our courts extra-territorial jurisdiction over foreign nationals who cannot be surrendered to requesting States for reasons similar to that of the case pertaining to Mr Tsebe. However, the said legislation will apply to future requests. Therefore, Mr Tsebe will be released by the Court since he cannot be surrendered to your country for the abovementioned reasons. The Department of Justice and Constitutional Development and Home Affairs of the Government of South Africa will discuss as how best to resolve Mr Tsebe’s stay in our country, or deportation to your country since he will be regarded an illegal immigrant upon his release. This is a complex matter given our Constitutional Court judgment on deportation of persons sought for criminal prosecution to countries where they can be sentenced to death.”18 [Emphasis added]
The aforesaid view adopted by the seventh respondent is congruent with Article 6 of the extradition treaty in existence between South Africa and Botswana, which provides that:
“Extradition may be refused if under the law of the requesting Party the offence for which extradition is requested is punishable by death and if the death penalty is not provided for such offence by the law of the requested Party.”19
The Department of Justice and Constitutional Development commenced with the preparation of draft legislation conferring upon courts in South Africa jurisdiction in respect of offences committed outside the Republic for which extradition was requested in circumstances where the requesting State does not provide assurances that the death penalty will not be imposed or if imposed will not be carried out.20 These recommendations were accepted by the seventh respondent on 6 August 2009. The contemplated draft legislation was designed to give effect to Article 5(c) of the Southern African Development Community (“SADC”) protocol on extradition.21 This subsection states the following:
“Extradition may be refused in any of the following circumstances:
if the offence for which extradition is requested carries a death penalty under the law of the Requesting State, unless that State gives such assurance, as the Requested State considers sufficient that the death penalty will not be imposed or, if imposed, will not be carried out. Where extradition is refused on this ground, the Requested State shall, if the other State so requests, submit the case to its competent authorities with a view to taking appropriate action against the person for the offence for which extradition had been requested;… ” [Emphasis added]
However, nothing concrete materialized in respect of such contemplated legislation. Presumably the reason for the termination of any further action in this regard is financial by nature.22 In this regard it should be noted that territoriality of criminal law is not an absolute principle of international law. States do have a wide measure of discretion to extend the application of their laws and the jurisdiction of their courts to persons, property, and acts outside their territory.23
In a letter dated 12 August 2009 Mr Seretse agreed to continue to engage with the South African Government “on the review of the extradition treaty…”24
On 25 August 2009 the current Minister of Justice Mr J T Radebe issued an order repeating that Mr Tsebe is