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

FACTS OF THE CASE 

This case concerned two respondents, Emmanuel Tsebe and Jerry Ofense Pitsoe  (also known as Phale), both citizens of Botswana, accused of murdering their  intimate partners in separate incidents. Botswana requested their extradition to face  trial for murder, a crime which, under section 203 of the Botswana Penal Code,  carries a mandatory death sentence unless extenuating circumstances are proven1. 

South Africa, having abolished the death penalty and constitutionally entrenched the  right to life and dignity, requested written assurances from Botswana that the death  penalty would not be imposed or executed if the respondents were extradited.  Botswana declined to provide such assurances. 

In response: 

• The Minister of Justice and Constitutional Development refused extradition  under section 11(b)(iii) of the Extradition Act 67 of 1962, which permits refusal if the  punishment is considered too severe2.This decision was grounded in the precedent  set by Mohamed v President of the Republic of South Africa, where the  Constitutional Court held that extradition without assurances violates constitutional  rights3. 
• However, the Department of Home Affairs sought to circumvent this by  initiating deportation proceedings under the Immigration Act, arguing that the  respondents were unlawfully present in South Africa. 

The matter was brought before the South Gauteng High Court, which held that  extradition or deportation without assurances would be unconstitutional. The Court  emphasized that any removal of individuals to a jurisdiction where they face the real  risk of execution would contravene South Africa’s constitutional obligations.  Accordingly, the Court prohibited their removal and dismissed the government’s  counter-application4. 

Legal Issues 

The Constitutional Court was tasked with resolving three interrelated legal questions  of profound constitutional and international significance: 

1. Extradition and the Death Penalty 

Whether the South African government may lawfully extradite or deport individuals to  a foreign jurisdiction where they face a real risk of being subjected to the death  penalty, without first obtaining binding assurances that such punishment will not be  imposed or executed. This issue engages the precedent set in Mohamed v President  of the Republic of South Africa, which held that extradition without such assurances  violates the Constitution. 

2. Scope of Constitutional Protection 

Whether the rights enshrined in the Bill of Rights, particularly the rights to life  (section 11)5, human dignity (section 10)6, and freedom from cruel, inhuman or  degrading punishment (section 12(1)(e))7, extend to foreign nationals, including  those unlawfully present in South Africa. The Court had to determine whether  constitutional protections are territorially confined or universally applicable to all  persons within the Republic’s jurisdiction. 

3. Statutory Interpretation in Constitutional Context 

How the Extradition Act 67 of 19628 and the Immigration Act 13 of 20029 should be  interpreted in light of South Africa’s constitutional framework and its international  obligations, including customary international law and treaties prohibiting cruel  punishment. The Court was required to assess whether executive discretion under  these statutes is constrained by constitutional norms and whether deportation could  be used to circumvent the safeguards embedded in the extradition process. 

ARGUMENTS 

Applicants (Government of South Africa) 

The government advanced a threefold argument in support of its position:

1. Entitlement to Remove Without Assurances 

The applicants contended that South Africa retains the sovereign right to extradite or  deport individuals to Botswana, even in the absence of assurances regarding the  non-imposition of the death penalty. They argued that such assurances are not a  legal prerequisite under either the Extradition Act or the Immigration Act. 

2. Mandatory Deportation Under Immigration Law 

The Department of Home Affairs asserted that the respondents, being unlawfully  present in South Africa, were subject to mandatory deportation under the  Immigration Act 13 of 2002, irrespective of the potential consequences in the  receiving state. 

3. International Cooperation and Fugitive Risk 

The applicants warned that refusal to extradite or deport could undermine  international cooperation in criminal justice and potentially render South Africa a  “safe haven” for fugitives, thereby compromising regional security and bilateral  relations. 

Respondents’ Arguments (Emmanuel Tsebe & Jerry Phale) 

The respondents advanced a rights-based constitutional challenge to their removal,  grounded in both domestic and international legal principles: 

1. Real Risk of Execution Violates Constitutional Rights 

They argued that extradition or deportation to Botswana, without binding assurances  that the death penalty would not be imposed or carried out, would expose them to a  real and foreseeable risk of execution. This, they contended, would violate their  rights under the South African Constitution, specifically: 

• Section 11: Right to life10
• Section 10: Right to human dignity11
• Section 12(1)(e): Freedom from cruel, inhuman or degrading punishment12

        2. Extension of Mohamed to Deportation 

The respondents relied heavily on the Constitutional Court’s precedent in Mohamed  v President of the Republic of South Africa, which held that extradition without  assurances contravenes constitutional rights. They argued that the same principle  must logically apply to deportation, as both involve state-facilitated removal to a  jurisdiction where constitutional protections may be undermined. 

3. Universal Application of the Bill of Rights 

They emphasized that the Bill of Rights applies to “everyone” within South Africa’s  jurisdiction, including foreign nationals and undocumented migrants13.The  Constitution does not distinguish between citizens and non-citizens when it comes to  the protection of fundamental rights. 

4. Executive Cannot Circumvent Constitutional Safeguards 

The respondents challenged the government’s attempt to use the Immigration Act as  a workaround to avoid the procedural and constitutional safeguards embedded in the  Extradition Act. They argued that such a manoeuvre would amount to constitutional  evasion, undermining the supremacy of the Constitution and the rule of law14. 

JUDGEMENT 

Judgment (Majority Opinion by Acting Justice Zondo) 

Holding 

The Constitutional Court held that the South African government has no legal power  to extradite or deport individuals to a country where they face a real risk of the death  penalty, unless binding assurances are obtained that such punishment will not be  imposed or executed. The Court affirmed the High Court’s decision prohibiting the  removal of the respondents to Botswana under these circumstances. 

Reasoning 

1. Constitutional Rights 

The Court grounded its reasoning in the Bill of Rights, specifically: • Section 10: Right to human dignity 

• Section 11: Right to life 
• Section 12(1)(e): Freedom from cruel, inhuman or degrading punishment 
• Section 7(2): Duty of the state to respect, protect, promote, and fulfil these  rights 

These rights, the Court emphasized, apply to “everyone” within South Africa’s  jurisdiction, including foreign nationals and undocumented migrants. The  Constitution’s protections are not contingent on citizenship or immigration status. 

2. Precedent: Mohamed v President of RSA 

The Court reaffirmed the principle established in Mohamed v President of the  Republic of South Africa [2001] ZACC 18, which held that extradition to a retentionist  state (i.e., one that retains the death penalty) without assurances violates  constitutional rights. The Court extended this principle to deportation, rejecting any  distinction between the two forms of removal. 

3. International Law 

The Court noted that both the 1969 Extradition Treaty between South Africa and  Botswana and the SADC Protocol on Extradition permit South Africa to refuse  extradition where the death penalty may be imposed without assurances.  Furthermore, South Africa retains the option to prosecute the alleged crimes  domestically, thereby avoiding impunity while upholding constitutional values. 

4. Rejection of Counterarguments 

• The government’s concern that South Africa might become a “safe haven” for  fugitives was dismissed as insufficient to override constitutional rights.
• The Court rejected the interpretation of the Immigration Act that would allow  deportation in violation of constitutional protections, affirming that statutory powers  must be exercised in conformity with the Constitution. 

Outcome 

• Leave to appeal was granted, but the appeal was dismissed. 
• The High Court’s order prohibiting the removal of the respondents without  assurances was confirmed. 

Justice Zondo concluded that constitutional supremacy demands that no person may  be removed from South Africa to face the death penalty, absent explicit and reliable  guarantees to the contrary. 

Legal and Constitutional Significance 

The judgment in Minister of Home Affairs v Tsebe [2012] ZACC 16 is a landmark  reaffirmation of South Africa’s constitutional commitment to human rights, legal  integrity, and international justice. Its significance unfolds across five key  dimensions: 

1. Reaffirmation of South Africa’s Abolitionist Stance 

The Court entrenched the principles laid down in S v Makwanyane [1995] ZACC 315 and Mohamed v President of the Republic of South Africa [2001] ZACC 18,  confirming that the South African state will not, under any circumstances, facilitate  the imposition or execution of the death penalty. This judgment reinforces the  absolute constitutional prohibition against capital punishment and extends its  protective reach to extraterritorial consequences. 

2. Extension of Rights to Foreign Nationals 

The decision affirms that the Bill of Rights applies universally to all persons within  South Africa’s jurisdiction, including foreign nationals and undocumented migrants.  The Court’s interpretation of sections 10, 11, and 12(1)(e) underscores that  constitutional protections are not contingent on citizenship or legal status, thereby  fortifying the principle of equality before the law. 

3. Hierarchical Supremacy of the Constitution Over Statutes 

By holding that deportation powers under the Immigration Act must yield to  constitutional rights, the Court clarified the interpretive hierarchy between statutory  discretion and constitutional mandates. This ensures that executive action cannot  circumvent constitutional safeguards through alternative statutory mechanisms. 

4. Implications for International Cooperation and Legislative Reform 

The judgment encourages legislative innovation, particularly the development of  mechanisms that would allow South African courts to prosecute crimes committed  abroad when extradition is blocked due to human rights concerns. 

5. Primacy of Human Rights Over Political Expediency 

The Court’s reasoning affirms that constitutional fidelity must prevail, even where it  may result in diplomatic inconvenience or political tension. South Africa’s legal order,  as shaped by its post-apartheid Constitution, is one that prioritizes human dignity,  life, and justice over expedient cooperation with retentionist states. 

Critical Reflection 

While the Constitutional Court’s decision in Tsebe rightly upholds South Africa’s  commitment to the sanctity of life and the abolition of the death penalty, it also raises  complex questions about transnational justice and accountability. The judgment  affirms that constitutional rights — particularly the right to life — must be protected  even when doing so may frustrate international cooperation or delay criminal  prosecution. 

From a principled standpoint, this is applaudable: it reflects South Africa’s  unwavering dedication to human rights, even in politically sensitive contexts.  However, it also opens the door to potential misuse. Individuals accused of serious  crimes, such as murder, may exploit South Africa’s protective legal framework to  evade justice in their home countries — especially where those countries retain  capital punishment. 

This tension invites a deeper inquiry: Should constitutional protections be absolute,  even when they risk shielding alleged perpetrators from accountability? Or should  there be a balancing mechanism that allows for extradition in exceptional cases,  provided fair trial guarantees are met? 

In this context, one might argue that deportation to Botswana, with the understanding  that the death penalty would be lawfully applied under its domestic legal system,  could serve the interests of justice. Yet, such a position would require South Africa to compromise its constitutional ethos, which categorically rejects capital punishment  as incompatible with human dignity. 

Ultimately, Tsebe forces us to confront the limits of constitutional morality in a  globalised legal landscape. It challenges us to reconcile the protection of rights with  the imperative of accountability — a dilemma that remains unresolved in many  jurisdictions.

BIBLIOGRAPHY

1 Penal Code (Botswana) s 203. 

2 Extradition Act 67 of 1962 (South Africa) s 11(b)(iii). 

3 Mohamed v President of the Republic of South Africa [2001] ZACC 18, 2001 (3) SA 893 (CC).

4 Minister of Home Affairs and Others v Tsebe and Others; Minister of Justice and Constitutional  Development and Another v Tsebe and Others [2012] ZACC 16, 2012 (5) SA 467 (CC).

5 Constitution of the Republic of South Africa, 1996, s 11. 

6ibid, s 10. 

7ibid, s 12(1)(e). 

8 Extradition Act 67 of 1962 (South Africa). 

9Immigration Act 13 of 2002 (South Africa).

10 Constitution of the Republic of South Africa, 1996, s 11. 

11 Constitution of the Republic of South Africa, 1996, s 11. 

12 Constitution of the Republic of South Africa, 1996, s 11. 

13 Constitution of the Republic of South Africa, 1996, s 7(1). 

14 Extradition Act 67 of 1962 (South Africa); Immigration Act 13 of 2002 (South Africa).

15.This reflects a commitment to international criminal justice without compromising constitutional  values.