Minister of Home Affairs and Others v Tsebe and Others  ZACC 16 (27 July 2012) Summary
A majority of the Constitutional Court of South Africa has refused to extradite two people to Botswana on the basis that the South African Government cannot surrender a person to a country where he or she faces the death penalty without first seeking an assurance that the death penalty would not be imposed. Aptly summarised by Yacoob ADCJ, “this judgment leaves the government in no doubt that deportation, extradition or any form of removal under these circumstances is wholly unacceptable”.
The primary case was a consolidated hearing concerning two applications where the applicants had, independently of one another, fled to South Africa after being accused of murdering their respective partners in the Republic of Botswana. Botswana issued warrants for each applicant’s arrest and requested the extradition of the applicants back to Botswana after South African police arrested the applicants. The Penal Code of Botswana imposes a mandatory death sentence on those convicted of murder in Botswana, unless there are “extenuating circumstances”.
In relation to the first applicant, the Minister of Justice and Constitutional Development wrote to his counterpart in Botswana to inform him that South Africa would not extradite the applicant unless Botswana gave South Africa a written assurance that, if convicted of murder, the death penalty would not be imposed or, if imposed, it would not be executed. Botswana refused to provide such an assurance and the Justice Minister issued an order prohibiting the surrender of the first applicant to Botswana. This was in accordance with a South African Constitutional Court decision (Mohamed and Another v President of the RSA and Others  ZACC 18), which held that “the South African Government has no power to extradite or deport or in any way remove from South Africa to a retentionist State any person who, to its knowledge, if deported or extradited to such a State, will face the real risk of the imposition and execution of the death penalty.”
Despite the order, the Department of Home Affairs subsequently transferred the first applicant to a holding facility pending deportation to Botswana on the basis that he was an illegal foreigner and was required to be deported.
The situation of the second applicant was slightly different in that the Director of Public Prosecutions in Botswana withdrew the criminal case against the second applicant after being informed that the Justice Minister would not order the extradition of the second applicant without the relevant assurance from Botswana in light of the non-extradition order in the first applicant’s case. Nevertheless it appears that the Court accepted that there was still a risk that the second applicant would face the death penalty if deported or extradited back to Botswana. The Department of Home Affairs sought to deport the second applicant.
There are a number of relevant provisions in the South African Constitution that acknowledge and aim to respect human dignity, freedom and security (see sections 7(1), 7(2), 10, 11 and 12). In particular the South African courts relied on section 7(2), which provides that the State must respect, protect, promote and fulfil the rights contained within the Bill of Rights.
South Africa and Botswana also concluded an Extradition Treaty which gives either country the right to refuse extradition where the person is wanted for a crime punishable by death.
Additionally, the Extradition Act enables the Justice Minister to order that a person should not be surrendered to another State if the offences of the accused “are trivial or if surrender is not required in the interests of justice or if, for any other reasons and having regard to all the circumstances of the case, it would be unjust, unreasonable or if the punishment is too severe” (section 11(b)(iii)).
Finally, there is also a South African Development Community Extradition Treaty to which Botswana is a party which also allows a State to refuse extradition “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”.
The Treaty also requires the requesting State (in this case South Africa) to take steps to have the accused person tried within its own courts where requested. However, it was accepted that South Africa did not have relevant legislation in place to enable South African Courts to try an accused in these circumstances.
The decision of the High Court at first instance
The High Court determined that the Government had no power to extradite or deport the applicants to face their respective murder charges because Botswana had refused to give the relevant assurances. The High Court considered the earlier case of Mohamed and Another v President of the RSA and Others (see above) and concluded that it was bound by that decision. The High Court also determined that there was no basis on which the present case could be distinguished. As a consequence, the High Court held that extradition or deportation in these circumstances would be in breach of constitutional obligations under section 7(2) of the South African Constitution.
On Appeal – the decision of the Constitutional Court of South Africa
The Constitutional Court of South Africa unanimously upheld the decision of the High Court. Whilst one Justice refused to give leave to appeal at all, the other Justices allowed the appeal but upheld the decision of the High Court. Their reasoning was as follows:
- the principle taken from Mohamed is one that many progressive societies in the world adopt;
- the present facts cannot be distinguished from the case of Mohamed. It is irrelevant whether the accused has a chance of going free. It is also clear that the obligation of the Government to secure the relevant assurance does not depend on whether removal is by extradition or deportation;
- there are no exceptions to the right to life, the right to human dignity and the right not to be subjected to treatment or punishment that is cruel, inhumane or degrading;
- there is no interference with the prosecutorial independence of the prosecuting authority of Botswana because the South African government is not requesting an assurance that the death penalty will not be asked for by the prosecutorial authorities. Rather, the South African Government is asking for an assurance that the death penalty will not be executed if imposed;
- whilst a political resolution between South Africa and Botswana through the Organ of Politics, Defence and Security under the South African Development Communities is desirable, the disputes raised by the applicants are disputes that can be resolved by the application of law and the applicants have a right under the Constitution to have the dispute resolved. Furthermore, a ruling by the court does not prevent the Executive from pursuing a political solution;
- whilst the Government is obligated to protect the population, the obligation simply requires the Government to put in place reasonable measures to discharge that obligation. This does not include extraditing the applicants back to Botswana where there is a high risk of death;
- concern relating to the perception of South Africa as a safe haven does not override the need to respect, protect, promote and fulfil human rights, observe the Constitution and deepen the values upon which South Africa has chosen to create their new society;
- the human rights provisions of the South African Constitution are not reserved only for citizens of South Africa. Every foreigner who enters the country, whether legally or illegally, will enjoy those rights; and
- there is no doubt that, if the first applicant was deported or extradited, he would face a real risk of the imposition of the death penalty if found guilty. The alleged killing was brutal, in this case there were no extenuating circumstances such that the death penalty would be mandatory and once the death penalty is imposed, there will be nothing that South Africa can do to prevent Botswana from executing the death penalty.
It is suggested that a similar finding would be made under Australian law. Under section 22 of the Extradition Act 1988 (Cth), a person must not be extradited if the death penalty will be imposed and it has been held that a real risk of the death penalty being imposed is sufficient to prohibit Australian officials from extraditing or deporting a person back to that country (see for example Kwok v Australia, CCPR/C/97/D/1442/2005 (23 November 2009)). Furthermore, since February 2011, the Migration Act 1958 (Cth) has also extended visa protection to people who are not refugees but who would be exposed to the death penalty or other arbitrary deprivation of life.
On the other hand, the Mutual Assistance in Criminal Matters Act 1987 (Cth) does not expressly prohibit Australia from providing mutual assistance to another country where there is a real risk of the death penalty being imposed. This is something that the Human Rights Law Centre has sought to change in order to ensure that Australian officials are not complicit in serious breaches of human rights (see the Centre’s submission on the Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011 (March 2011)).
This decision is available at: http://www.constitutionalcourt.org.za/site/tsebe.htm
Megan Evetts, Law Graduate, King & Wood Mallesons Human Rights Law Group