Minister of Home Affairs and Others v Tsebe and Others; Minister of Justice and Constitutional Development and Another v Tsebe and Others

Two Botswana nationals, Emmanuel Tsebe and Jerry Ofense Pitsoe (Phale), were accused of murdering their partners in Botswana, where the death penalty remains a competent sentence for murder. Both fled to South Africa. Botswana requested their extradition. South Africa sought written assurances from Botswana that the death penalty would not be imposed or carried out, but Botswana refused. Despite this, South African authorities sought either to extradite or deport the men as illegal foreigners under the Immigration Act. Tsebe and Phale approached the South Gauteng High Court to interdict their extradition or deportation in the absence of assurances. The High Court granted the relief, relying on the Constitutional Court’s decision in Mohamed v President of the RSA. The Ministers and Government sought leave to appeal directly to the Constitutional Court.

The appeal was dismissed. The High Court order was upheld, declaring that extradition or deportation of the respondents to Botswana without written assurances against the death penalty would be unlawful and unconstitutional, and interdicting the State from doing so absent such assurances.

This case reaffirmed and extended the Mohamed principle by confirming that constitutional protections against facilitating the death penalty apply equally to deportation and extradition. It clarified that the State may not rely on immigration powers to circumvent constitutional and human rights obligations, strengthening South Africa’s commitment to the abolition of the death penalty and the protection of fundamental rights.