A Botswana national wanted for murder may not be extradited unless that country gives assurances he would not face the death penalty, the Constitutional Court ruled on Friday.
Justice Edwin Cameron said it would be a breach of the statutory values of the South African Constitution to hand him over to Botswana without this guarantee.
He dismissed the appeal by South Africa’s ministers of home affairs and justice, re-affirming a previous judgment which set a precedent in this regard.
The precedent-setting judgment related to Khalfan Mohamed, who was wanted by the United States of America 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 agreement that he would not face the death penalty.
Friday’s ruling related to Botswana citizens Emmanuel Tsebe and Jerry Phale, who entered South Africa, allegedly after murdering family members in separate cases. Tsebe has since died.
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.
“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 a respondent in the case, the Society for the Abolition of the Death Penalty, 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.”
The death penalty is not allowed in South Africa.
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 were 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 which 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 for being in the country 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. – SAPA