South Africa will not extradite foreign nationals suspected of crimes that may lead to them facing the death penalty in those countries that seeks to try them – this follows a Constitutional Court judgment on Friday.
Writing for the majority, acting judge Ray Zondo noted that "we as a nation have chosen to walk the path of the advancement of human rights … no matter who the person is and no matter what the crime is that he is alleged to have committed, we shall not in any way be party to his killings as a punishment and we will not hand such person over to another country [and] … expose him to the real risk of the imposition and the death penalty upon him".
This after two Botswana nationals, Emmanuel Tsebe and Jerry Phale, alleged to have committed murder in their home country had sought to stave off their extradition.
Zondo dismissed the appeal by South Africa's ministers of home affairs and justice who had sought to overturn an earlier Gauteng high court ruling that had also halted their deportation. Tsebe died in detention in 2010 before the high court could hear his case.
In his judgment, Zondo, noting that South Africa had passed legislation allowing for people to be tried in South Africa for specific crimes committed outside its borders, like Prevention and Combatting of Corrupt Activities Act and the Implementation of the Rome Statute of the International Criminal Court Act for crimes against humanity wrote: "There is no reason why similar legislation cannot or should not be put in place to ensure that persons … can be tried by the South African courts when countries in which they allegedly committed the crimes are not prepared to give the requisite assurance [that suspects will not face the death penalty when tried]."
This appeared in response to concerns raised by the minister of justice, Jeff Radebe, in court papers, that South Africa would be seen to be harbouring criminals – and become a haven for them – if alleged criminals were not extradited.
Justices Edwin Cameron, Thembile Skweyiya, Johan Froneman and Johann van der Westhuizen differed with Zondo's judgment on this point finding it "not necessary for the decision" but concurred with the rest of the judgment.
Zondo had written a majority decision in which five justices had also concurred wholly, with acting deputy chief justice Zak Yacoob disagreeing that leave to appeal the high court judgment should even have been granted.
The Tsebe judgment reinforced an earlier precedent-setting judgment handed down by the Constitutional Court that related to Khalfan Mohamed, who was wanted by the United States in connection with the bombing of its embassy in Tanzania in 1998.
The Constitutional Court ruled previously that even if there was an extradition agreement between South Africa and the US, he could not be handed over without an assurance that he would not face the death penalty.
Phale's attorney Jacob van Garderen said it was important to affirm that there would not be an extradition to a country where people faced the death penalty, without such an agreement.
Try again later
"The court again emphasised that the imposition of the death penalty is unconstitutional, in line with the judgment of Mohamed."
Van Garderen said Friday's judgment meant Phale no longer faced the immediate risk of being extradited.
"But nothing stops the [Botswana] government from making a new request."
Bongumusa Sibiya, attorney for the Society for the Abolition of the Death Penalty, which was admitted as amicus curiae, said the society was pleased with the ruling.
"It confirms the legal position in South Africa," he said. "It also means that the country continues to uphold people's right to life, and that it won't be taken lightly."
Sibiya said a solution to this "conundrum" was for South Africa to enact legislation enabling it to try people wanted for crimes elsewhere.
According to papers submitted to the court, the entry to and departure from South Africa of wanted individuals was the responsibility of the department of home affairs.
Getting their warrants of arrest and any subsequent prosecution for illegal entry was the responsibility of the departments of home affairs, safety and security, correctional services and justice.
Requests for extradition were directed at the department of international relations, and the decision on whether to extradite vested in the minister of justice. Murder is an extraditable offence in terms of the relevant extradition treaty that exists between the republics of Botswana and South Africa.
Extradition may be refused if the offence is punishable by death. The treaty makes no provision for either a request for, or provision of the undertaking that was required in Mohamed's case.
During the course of the case, South African authorities had to consider several other possible developments: that Phale may apply for asylum and therefore be immune to prosecution, and also that trying to deport him might look like a "disguised extradition".
The state had argued that the case had created a situation where fugitives could obtain residence in South Africa, immunity from prosecution, and relative freedom. It had argued that the South African government had a duty to allow its citizens to be free of fear and its inhabitants to be secure.
At the same time, it did not have jurisdiction to try foreign nationals for offences they committed elsewhere so, as a matter of policy, would seek to return them to their country.