The court held that if the extraditions at hand were to be effected, then the rights held by the applicants, by virtue of them being human beings within the territory of the democratic republic, would be removed and replaced with the rights afforded to persons in Botswana, which did not include the right not to be put to death by the executive should they be convicted. Therefore, extraditing a person to a country in which they were likely to face the death penalty did constitute a limitation of such person’s right to life in terms of the South African Constitution.
The court held that South Africa would not stand as a safe haven to criminals if requesting states were prepared to give assurances against the death penalty. If only that compromise could be reached with Botswana, justice could still be served, and non-imposition of the death penalty in the requesting state would be a small price to pay. Botswana’s refusal to co-operate was strange seen in the light of the Protocol as well as the Extradition Treaty in existence. Both documents to which Botswana was bound contemplated a prohibition against extradition where the requesting state had retained the death penalty and the requested state had abolished it.
Criminal law; international criminal law; extradition; offence for which extradition is sought; death penalty; constitutional law; Bill of Rights; right to life; limitation on Constitutional right; justifiable limitation
Both applications concerned the obligations of the South African State under the Constitution read with international law, regarding the extradition or deportation of a foreign national who was also a fugitive of justice to a State where he or she was at risk of being subjected to the death penalty. The applicants contended that under the Constitution no removal of any sort could occur in such circumstances.
The applicants contended that the Constitutional Court had ruled that an absolute bar existed against any person being extradited or deported from South Africa to another country where a death penalty was a real risk. The respondents on the other hand contended that Mohamed was distinguishable on the facts thus permitting extradition and/or deportation to take place in the circumstances of the case.
The following order was made:
1. Declaring the deportation and/or extradition and/or removal of the applicant to the Republic of Botswana unlawful and unconstitutional, to the extent that such deportation and/or extradition and/or removal would have been carried out without the written assurance from the Government of Botswana that the applicant would not face the death penalty there under any circumstance;
2. Prohibiting the respondents from taking any action whatsoever to cause the applicant to be deported, extradited or removed from South Africa to Botswana until and unless the Government of the Republic of Botswana provided a written assurance to the respondents that the applicant would not be subject to the death penalty in Botswana under any circumstances;
3. Directing the first and second respondent and any other party who opposed the relief sought herein to pay the applicants’ costs inclusive of the cost of two counsel.
4. The counter-applications were dismissed with costs which were to include the costs of two counsel.
The death penalty constituted inhuman and degrading treatment and t it could not stand constitutional muster. Botswana had to know that South Africa’s domestic laws and constitution had procedures in place that had to be adhered to. South Africa would suffer the most prejudice if Botswana failed to provide the assurance required in extradition matters as its rights in the Constitution would be violated.
Botswana could only have itself to blame for the Republic’s refusal to extradite the applicants. It still implemented the death penalty; it had an appalling history of “secret executions” in regard to the death penalty and its constitution did not induce confidence that the clemency provisions were applied in a humane manner.