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

Khalfan Khamis Mohamed, a Tanzanian national, was arrested in Cape Town in October 1999 by South African immigration officials after being identified as a suspect in the 1998 bombings of the United States embassies in Nairobi and Dar es Salaam. He was an illegal immigrant who had entered South Africa under a false name and had applied for asylum. After his arrest, detention, and interrogation by South African officials, he was handed over to agents of the United States Federal Bureau of Investigation and removed to the United States without formal extradition proceedings and without South Africa obtaining assurances that the death penalty would not be sought or imposed. Mohamed and another applicant challenged the lawfulness and constitutionality of his arrest, detention, and removal, contending that it amounted to a disguised extradition in breach of South African law and his constitutional rights. The High Court dismissed the application, and the applicants sought urgent leave to appeal to the Constitutional Court.

Leave to appeal was granted. The Constitutional Court declared that the arrest, detention, and handing over of Mohamed to United States authorities for removal were unlawful and unconstitutional, and that the South African government had acted in breach of its constitutional obligations by failing to obtain assurances against the imposition of the death penalty. No mandatory relief compelling diplomatic action was granted, as it would have had no practical effect.

This case is a landmark decision affirming South Africa’s absolute constitutional opposition to the death penalty and clarifying that the state may not avoid constitutional and extradition safeguards through deportation or informal cooperation with foreign authorities. It establishes that South Africa bears responsibility for the foreseeable consequences of its actions in exposing individuals to capital punishment abroad, reinforcing the extraterritorial reach of constitutional obligations in state conduct.