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

Emmanuel Tsebe and Jerry Ofense Pitsoe (Phale), both Botswana nationals, fled to South Africa after being accused of murdering their partners in Botswana in 2008 and 2009 respectively. Both entered South Africa (Tsebe illegally, Phale's status disputed). Botswana requested their extradition to face murder charges. Murder in Botswana carries a mandatory death penalty where no extenuating circumstances exist. South Africa requested written assurances from Botswana that the death penalty would not be imposed or, if imposed, would not be executed. Botswana refused to provide these assurances, stating there was no provision for this in its domestic law or in the extradition treaty with South Africa. The Justice Minister initially issued a non-extradition order for Tsebe under section 11(b)(iii) of the Extradition Act based on Mohamed v President of RSA. However, the Home Affairs Minister decided to deport both men as illegal foreigners under the Immigration Act. The Justice Minister later changed position and filed a counter-application seeking a declaration that extradition was permissible even without the assurance if the requesting state refused. Tsebe died before the High Court hearing. Phale brought an urgent application to prevent his deportation/extradition. The South Gauteng High Court (Full Court) granted the applications and interdicted the government from extraditing or deporting the respondents without the requisite assurance. The government applied for leave to appeal directly to the Constitutional Court.

• Whether the government has the power to extradite or deport a person to another country to face capital charges where the death penalty is a competent sentence and that country refuses to give an assurance that the death penalty will not be imposed or, if imposed, will not be executed
• Whether such extradition or deportation without the requisite assurance would violate sections 10 (right to dignity), 11 (right to life), and 12(1)(e) (right not to be treated or punished in a cruel, inhuman or degrading way) of the Constitution
• Whether the government would breach its obligations under section 7(2) of the Constitution to respect, protect, promote and fulfil the rights in the Bill of Rights by extraditing or deporting someone in such circumstances
• Whether the present case is distinguishable from Mohamed v President of RSA
• Whether deportation under the Immigration Act can override constitutional protections against facilitating capital punishment
• Whether the risk of the death penalty being imposed and executed is 'real' in the circumstances

Condonation granted. Leave to appeal granted. Appeals dismissed. The applicants (government ministers and officials) were ordered to pay the costs of Mr Phale and the Society for the Abolition of the Death Penalty in South Africa, including costs consequent upon the employment of two counsel. The High Court's order was confirmed, declaring that the deportation and/or extradition of the respondents to Botswana without written assurance that the death penalty would not be imposed or executed would be unlawful and unconstitutional, and prohibiting the government from effecting such deportation or extradition.

The government has no power under the Constitution to extradite, deport or in any way remove from South Africa to a retentionist state any person who, to its knowledge, will face a real risk of the imposition and execution of the death penalty. This principle applies regardless of whether the removal is by way of extradition or deportation, whether the person is being sent to their home country or a third country, and whether the person is in South Africa legally or illegally. When the state hands someone over to another country in circumstances where that person will face a real risk of the death penalty if convicted, the state facilitates the imposition of the death penalty and breaches its obligations under section 7(2) of the Constitution to respect, protect, promote and fulfil the rights to life (section 11), human dignity (section 10), and freedom from cruel, inhuman or degrading treatment or punishment (section 12(1)(e)). These constitutional obligations apply to all state actions without qualification or exception. The statutory obligation to deport illegal foreigners under the Immigration Act must be read consistently with the Constitution and cannot authorize deportation that would violate fundamental constitutional rights. Where a requesting state refuses to provide an assurance that the death penalty will not be imposed or executed, this refusal is itself evidence that there is a real risk of the death penalty being imposed and executed.

The Court made several non-binding observations: (1) The solution to the impasse with countries like Botswana lies in inter-governmental negotiations, potentially through SADC structures, and Botswana could provide the requisite assurance through executive clemency powers under its Constitution; (2) South Africa should consider enacting legislation to give its courts jurisdiction to try offences committed outside its borders, as contemplated by the SADC Extradition Protocol and as South Africa has already done for certain specified offences under the Prevention and Combating of Corrupt Activities Act and the Implementation of the Rome Statute of the International Criminal Court Act; (3) Practical difficulties in prosecuting foreign crimes in South Africa, such as bringing foreign witnesses, are not insurmountable and requesting countries would likely cooperate to ensure trials occur rather than alleged perpetrators going unpunished; (4) Concerns about South Africa being perceived as a "safe haven" for fugitives, while legitimate, cannot override constitutional obligations and are mitigated by South Africa's entitlement under international treaties to refuse extradition without the requisite assurance; (5) The SADC Extradition Protocol and the 1969 Extradition Treaty between South Africa and Botswana both permit South Africa to refuse extradition in capital cases, meaning South Africa's conduct is consistent with its international obligations; (6) Government should have been more careful and approached courts for clarification before attempting to deport individuals in circumstances potentially contrary to Mohamed, especially where fundamental rights are at stake; (7) The path of human rights advancement chosen by South Africa through its Constitution is not an easy one and may require accepting difficult consequences as the price for building the kind of society envisioned by the Constitution. Cameron J noted that paragraphs 55, 56 and 60-62 of the main judgment (dealing with prosecution difficulties, costs implications, and jurisdictional legislation) were not necessary for the decision. Yacoob ADCJ's dissent on leave to appeal (though agreeing on the merits) criticized the government for attempting to deport the respondents without first seeking court clarification despite the existence of Mohamed, and emphasized that where a High Court judgment is detailed and convincing on a matter of public importance, leave to appeal should only be granted where there are reasonable prospects of success.

This case is a landmark reaffirmation and application of the principles established in Mohamed v President of RSA regarding South Africa's constitutional obligations when extraditing or deporting persons who may face the death penalty. It firmly establishes that: (1) South Africa's constitutional commitment to abolishing the death penalty extends to preventing facilitation of capital punishment in other countries through extradition or deportation; (2) The obligations under section 7(2) to respect, protect, promote and fulfil rights in the Bill of Rights apply to all state actions without exception, including in relation to foreign nationals and illegal immigrants; (3) The rights to life, dignity and freedom from cruel, inhuman or degrading treatment or punishment apply universally to everyone within South Africa's borders, regardless of immigration status; (4) Statutory obligations under legislation such as the Immigration Act must be interpreted consistently with the Constitution and cannot override fundamental rights; (5) The test is whether there is a "real risk" (not mere possibility) of the death penalty being imposed and executed; (6) Where a country refuses to give the requisite assurance, this itself is evidence of the real risk; (7) South Africa's international treaty obligations (including the SADC Extradition Protocol) support rather than contradict this constitutional position. The judgment reinforces South Africa's commitment to human rights advancement as a foundational constitutional value and confirms that this commitment may require accepting difficult consequences, such as being unable to extradite alleged serious criminals. It emphasizes that building a society based on human dignity and human rights advancement requires consistency in all state actions. The case also highlights the importance of inter-departmental consistency in government and the need for the Executive to approach courts for guidance when constitutional issues arise, rather than proceeding with potentially rights-violating actions. The judgment has significant implications for extradition law, immigration law, and South Africa's international relations, particularly with countries that retain capital punishment.