Extradition challenged in ConCourt
Johannesburg - The constitutionality of extraditing illegal immigrants charged with a capital crime in another country was challenged in the Constitutional Court on Thursday.
The court heard arguments in the case of two Botswana citizens identified as Emmanuel Tsebe and Jerry Phale.
They became illegal immigrants in South Africa after they were charged with murdering their partners in Botswana. The two are sought by Botswana to stand trial. Tsebe has since died.
Before Tsebe's death the pair had applied to the South Gauteng High Court in Johannesburg to prevent their extradition to Botswana, unless their country gave a written assurance that the death penalty would not be imposed. The court granted the order.
However, South Africa's ministers of justice and constitutional development, and home affairs disputed the ruling.
In an application for leave to appeal to the Constitutional Court, they challenged the reasoning behind the judgment.
The ministers said the high court failed to pay particular attention to the relevant provisions of the Immigration Act.
Michael Donen, for the justice ministry, said there were three ways the matter could be dealt with.
The immigrants could either be allowed to walk free, the government could adopt legislation to deal with the matter, or a diplomatic approach could be followed.
Donen said his client had no alternative but to resort to using political clout.
Marumo Moerane, for home affairs, said the Immigration Act provided a systematic way to deal with illegal immigrants, including those with warrants for murder.
He said the government was merely seeking to comply with the Constitution. Though constitutional rights were extended to all people in the country, these two fell into a different category.
"The two [Tsebe and Phale] are prohibited illegal foreigners and liable to be deported."
He said there was no evidence Phale would be convicted for the murder, in which he was implicated by circumstantial evidence. He said if Phale were not deported, he would become a liability to South Africa because he could not find employment.
Pressed to admit that the risk of a death penalty existed for Phale, Moerane said: "All I can say is that it is a possibility."
Lawyers for Tsebe and Phale argued it was unlawful for South Africa to extradite or deport people to countries where they risked being subjected to cruel or inhuman treatment, including the death penalty, in the absence of an assurance from those countries that they would not be subjected to such.
Anton Katz, counsel for Tsebe and Phale, argued that the home affairs minister could determine conditions similar to those outlined for bail conditions while seeking the assurance from Botswana, rather than extraditing his clients without an undertaking from that country.
On a question from the bench about the risk of South Africa being seen as a haven for murderers, Katz said Constitutional values weighed heavier than public perceptions. Phale was not a convicted criminal in South Africa, he said.
Counsel for the Society for the Abolition of the Death Penalty, Steven Budlender, who also acted as friend of the court, asked the court to dismiss the government's application for leave to appeal with costs.
Amnesty International counsel Paul Kennedy, who supported Tsebe and Phale, described the South African government's approach in the matter as "radical".
Judgment was reserved.