Khalfan Khamis Mohamed and Abdurahman Dalvie v President of the Republic of South Africa and Six Others

The first applicant, Khalfan Khamis Mohamed, a Tanzanian national, was indicted by a US federal grand jury for his role in the 1998 bombings of US embassies in Nairobi and Dar es Salaam. He entered South Africa in August 1998 using a false passport and false identity, and applied for asylum. In October 1999, FBI agents identified him through asylum records in Cape Town. On 5 October 1999, South African immigration officials arrested Mohamed at the refugee office, interrogated him, and handed him over to FBI agents within two days. He was removed to the United States on 6 October 1999 without following proper deportation procedures or obtaining an assurance that the death penalty would not be imposed. The second applicant, Dalvie, was Mohamed's employer and landlord who sought to assist him but was prevented from accessing him or arranging legal representation. Mohamed was subsequently put on trial in New York facing capital charges. The applicants challenged the arrest, detention, interrogation and removal as unlawful and unconstitutional.

• Whether the removal of Mohamed to the United States was a lawful deportation or an unlawful disguised extradition
• Whether the deportation complied with the provisions of the Aliens Control Act 96 of 1991 and the Aliens Control Regulations
• Whether regulation 23 of the Aliens Control Regulations permits deportation to destinations other than those specified
• Whether the South African government was constitutionally obliged to obtain an assurance from the United States that the death penalty would not be imposed before removing Mohamed
• Whether Mohamed's alleged consent to removal to the United States was valid and informed
• Whether Mohamed's constitutional rights to life, dignity, and not to be subjected to cruel, inhuman or degrading punishment were infringed
• Whether it is appropriate for a court to order the executive to seek remedial action from a foreign government

The appeal was upheld. The High Court's order dismissing the application was set aside. The Constitutional Court declared that the handing over of Mohamed to US agents on 6 October 1999 was unlawful on three grounds: (1) it infringed his constitutional rights to human dignity, life, and not to be treated in a cruel, inhuman or degrading way because no prior undertaking was obtained from the US government that the death penalty would not be imposed or executed; (2) there was no authority under the Aliens Control Act and regulations to deport or remove Mohamed to the United States; (3) the removal violated section 52 of the Aliens Control Act by not observing the mandatory three-day waiting period. The Director of the Constitutional Court was directed to cause the full text of the judgment to be delivered to the administrative head of the Federal Court for the Southern District of New York as a matter of urgency. No order as to costs was made.

The binding legal principles established are: (1) Where a person is to be removed from South Africa to face criminal charges in another country where there is a real risk that the death penalty will be imposed, the state is constitutionally obliged under sections 10, 11 and 12 of the Bill of Rights to obtain an assurance that the death penalty will not be sought, imposed or carried out, regardless of whether the removal is characterized as deportation or extradition. (2) Regulation 23 of the Aliens Control Regulations prescribes a closed, mandatory list of permissible destinations for deportation (country of passport, citizenship, or domicile for stateless persons), and the state has no discretion to deport to any other destination. (3) The state has no residual prerogative or common law power to deport aliens beyond what is provided in the Aliens Control Act and regulations, as such powers are not enumerated in section 84(2) of the Constitution. (4) Section 52 of the Aliens Control Act mandatorily requires a three-day waiting period before removal of a prohibited person, which cannot be waived by the immigration authorities. (5) Any consent or waiver of fundamental constitutional rights must be fully informed, clearly established, and made with the benefit of legal advice; the onus to prove valid consent or waiver rests on the state. (6) The constitutional obligation to protect fundamental rights applies equally to citizens and non-citizens within South Africa's jurisdiction.

The Court made several significant observations without definitively deciding certain issues. First, the Court refrained from deciding whether a person in Mohamed's position can validly consent to being removed to a country where his life is in jeopardy, noting this raises questions about whether such fundamental rights can be waived at all. Second, the Court noted that although there were disturbing circumstances suggesting Mohamed was deliberately kept isolated and denied access to legal advice to facilitate his removal, these issues were not adequately canvassed below, and there may be less sinister explanations. The Court therefore did not make a definitive finding that Mohamed's constitutional right to consult a lawyer was infringed, though the circumstances supported a finding of material impairment of his ability to validly waive rights. Third, the Court observed that the immigration officials' conduct in telling Dalvie that arranging a lawyer would be futile and denying access to Mohamed was disingenuous and raised sinister inferences about deliberate isolation. Fourth, the Court emphasized the importance of government leading by example in observing the law, quoting Justice Brandeis's famous warning in Olmstead v United States about how government lawlessness breeds contempt for law and invites anarchy. The Court stressed this principle has particular relevance for South Africa given its past experience with state lawlessness under apartheid and current temptations to use questionable measures in fighting crime. Fifth, the Court noted with interest that international criminal tribunals for Yugoslavia, Rwanda and the International Criminal Court all exclude the death penalty even for the most serious crimes including genocide, reflecting the international trend away from capital punishment.

This landmark case establishes several important principles in South African constitutional and administrative law. It affirms that the abolition of the death penalty in S v Makwanyane creates a positive obligation on the state not to facilitate or participate in the imposition of capital punishment by other states. The judgment extends constitutional protection to non-citizens facing removal from South Africa and establishes that there is no distinction between deportation and extradition for purposes of protecting fundamental rights. It confirms that the state has no residual prerogative or common law power to deport aliens beyond what is provided in legislation. The case also establishes important principles about informed consent and waiver of constitutional rights, particularly the right to legal representation. The judgment emphasizes that government must scrupulously observe the law and that the legitimacy of the constitutional order is undermined when the state acts unlawfully, even in combating serious crimes like terrorism. It represents an important application of South Africa's commitment to human dignity and human rights in its international dealings and aligns South African law with international human rights standards reflected in instruments such as the European Convention on Human Rights and the Convention Against Torture.