Extradition challenged in ConCourt

2012-02-23 22:35

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.

  • Desmond - 2012-02-24 05:32

    Why must SA be a haven for criminals from other countrys?

  • Max - 2012-02-24 05:37

    What ever other countries want to do with their criminals is none of our least they are doing something.

  • jeremy002 - 2012-02-24 05:45

    Proof positive that the death penalty is a deterrent (not an absolute cure) to capital crime, and that South Africa's useless (really useless) liberal and lax approach to dealing with capital crime is doing only one class of person a favour, and that is the criminals. Now we are a magnet for these criminals who are trying to escape what they fear most. Yes, read it and weep you liberal idiots - they do actually fear the death penalty and have run like rabbits over the border to escape it and the rule of law in their own country. The rule of law is just about non-existant here. Those in favour of our liberal approach can write tomes in reply to this but you cannot escape the truth that this case reveals.

      Gungets - 2012-02-24 07:36

      Fear of the death sentence made them run, it did not stop them doing the crime? I don't care one way or another, but capital crime is still rife in places where they have the death penalty. I think that most criminals don't believe they will be caught. I think that very good results in catching criminals would be more of a deterrent. If they know they are going to be caught, they will think twice, rather than thinking twice about dying in the (extremely, extremely unlikely) event they will be caught.

      jeremy002 - 2012-02-24 09:14

      @Gungets - like I said, not an absolute cure. But please look at the crime statistics of countries with and without the death sentence, taking also in account the education and literacy levels. Begin with Botswana.

      Gungets - 2012-02-24 10:18

      Jeremy - I think the Arabic states might be a better example, but there you have the added complication of religious influence. The problem with the debate is that it can never be seen in isolation. You need to take cultural influences into account (in Switzerland you have so little crime because it is unthinkable that you might steal, but they do have a high suicide rate ..??), you need to take policing into serious account. The death sentance only works if people have any likelihood of being caught. In SA, low likelihood, therefore low fear of the death penalty .. in fact low fear of any penalty at all. I think we could bring back the death penalty and crime would decrease only by the amount that we remove repeat offenders from the gene pool. Not a bad result, but then we had better get the court systems right and make sure we don't kill innocent people. The Yanks have a terrible record that way. Eeeisch. It's a huge debate - if I could buy you a couple of Kilkennies and have a whole day to chat, we might cover the whole thing. Go well.

  • Gungets - 2012-02-24 07:30

    Hahhhaaa .. News24 netnannies, deleting posts. Let's try again, with no "stars" in sight. Don't you just love the unintended consequence of our Constitution, which, for a huge part I think is brilliant. It encourages people who wish to get permanent residence in South Africa to first KILL someone in their home country and then run across the border. Yet South Africa does squat to prevent the death sentence being carried out on our citizens in other countries. Personally I am not complaining, I reckon if you do the crime you must suffer the consequences, but just saying ...

  • Graham.Cooper2 - 2012-02-24 07:40

    If you cross the North Korean Border illegally you get 12 years hard labor. If you cross the Iranian Border illegally you are detained indefinitely. If you cross the Afghan Border illegally, you get shot. If you cross the Saudi Arabian Border illegally you will be jailed. If you cross the Chinese Border illegally you may never be heard from again. If you cross the Venezuelan Border illegally you will be branded a spy and your fate will be sealed. If you cross the Cuban Border illegally you will be thrown into political prison to rot. HOWEVER If you cross the South African Border illegally you get ? a job, ? a drivers license, ? a pension card, ? welfare, ? credit cards, ? subsidized rent or a loan to buy a house, ? a free education and ? free health care. Perks include ? weapons of your choice. And in South Africa you can ? murder, ? use drugs, ? drink and drive, ? steal, ? rape BUT PLEASE South Africans DON'T SMOKE in a public place - it is illegal

      Mark - 2012-02-24 09:10

      ..and smoking is disgusting, unhealthy and stinks, so thank goodness it is illegal to smoke in public places. ;)

  • reinhard.pettenburger - 2012-02-24 09:12

    What a load of K_K I do not care who you are if you have committed a crime in another country you should be extradited to face trial by the laws of that land. This continued political human rights issues have gone too far. Again its the tax payers paying for these criminals.

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