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CONSTITUTIONAL COURT OF SOUTH AFRICA
CCT
17/01
KHALFAN KHAMIS MOHAMED First Applicant
ABDURAHMAN
DALVIE Second Applicant
and
PRESIDENT OF THE REPUBLIC OF SOUTH
AFRICA
AND SIX OTHERS Respondents
and
THE SOCIETY FOR THE
ABOLITION OF THE DEATH
PENALTY IN SOUTH AFRICA
THE HUMAN RIGHTS
COMMITTEE TRUST Amici Curiae
Heard on : 10 May 2001
Decided on : 28 May 2001
JUDGMENT
THE COURT:
[1] The first applicant before this Court,
Mr Khalfan Khamis Mohamed (“Mohamed”), is currently standing trial
on a number
of capital charges in a federal court in New York. He alleges that
the relief sought in the proceedings in this Court could have
a bearing on the
criminal trial which started some months ago. For that reason the preliminary
steps for a hearing in this Court
were foreshortened and, with the cooperation
of counsel for the parties, set-down was
expedited.[1] It is necessary to
describe the nature of each of the two cases and to explain their
interrelationship.
[2] The case before this Court is an urgent
application for leave to appeal against a judgment in the Cape of Good Hope High
Court.[2] In that
Court[3] the applicants sought
declaratory and mandatory relief against the
government[4] arising out of
Mohamed’s arrest in Cape Town on 5 October 1999, his subsequent detention
and interrogation there by South African
immigration officers and his handing
over to agents of the United States Federal Bureau of Investigation (“the
FBI”)
for interrogation and removal two days later to New York, there to
stand trial.
[3] The argument advanced on behalf of the respective
parties will be analysed in detail later. Suffice it to say by way of
introduction
that the main contention on behalf of the applicants (supported by
the amici curiae[5]) was
that Mohamed’s arrest, detention, and handing over by the South African
authorities to the FBI agents and his removal
by them to the United States were
part and parcel of a disguised extradition in breach of the law. More
particularly the South African
authorities were said to have breached the
provisions of the Aliens Control
Act[6] (“the Act”) and the
regulations published thereunder.[7]
Even more pertinently, Mohamed’s constitutional right to life, to dignity
and not to be subjected to cruel, inhuman or degrading
punishment[8] had allegedly been
infringed.
[4] The factual substratum of the case for the
applicants was gleaned from documents that had been made available to their
legal representatives
pursuant to two interlocutory orders on the government for
their disclosure. The thrust of the consequential relief the applicants
unsuccessfully sought in the High Court and pursued in this Court was a
declaration to the effect that—
(i) the arrest, detention,
interrogation and handing over of Mohamed to the FBI agents were unlawful and
unconstitutional; and
(ii) the respondents breached Mohamed’s
constitutional rights by handing him over to the custody of the United States
without
obtaining an assurance from the United States government that it would
not impose or carry out the death penalty on him if
convicted.
[5] The mandatory relief sought pursuant to this
declaration was an order “[d]irecting the Government of the Republic of
South
Africa to submit a written request through diplomatic channels to the
Government of the United States of America, that the death
penalty not be
sought, imposed nor carried out upon [Mohamed]” should he be convicted in
the criminal trial.
[6] The crux of the government’s contentions,
which carried the day in the court below, was that Mohamed was an illegal
immigrant
whom the immigration authorities had properly decided to deport and
whose deportation was mandated by the Act. Such deviations as
there might have
been from the literal prescripts of the Act or the regulations were of no legal
consequence. Nor did the collaboration
between the South African officials and
the FBI agents whereby Mohamed was eventually removed to the United States make
any difference
to his status or his liability to deportation. Moreover, so the
court held, on the evidence of the immigration officials, which
could not be
rejected in motion proceedings, Mohamed had been duly apprised of his rights and
had freely elected to accompany the
FBI officers without delay to the United
States, there to stand trial with his comrades. Finally, so the government
contended and
the court found, a court had no power to issue the mandamus
sought, which would in any event have no efficacy. On 20 April 2001
the High
Court delivered its judgment, comprehensively dismissing the contentions
advanced on behalf of the applicants and refusing
the relief they had
sought.
[7] That is when the applicants approached this Court as a
matter of urgency, asking for condonation for non-compliance with the
ordinary
procedures for appeals to this Court and for leave to bring an appeal directly
here.[9] On the face of it there was
manifest urgency and, with the active cooperation of all concerned, the matter
was ripe for hearing
within three weeks of delivery of the judgment below. The
Court is grateful to all who made this possible. With this description
of the
nature of and backdrop to the proceedings in this Court, we turn to outline the
other case which is currently under way in
New York.
[8] That case, a
criminal trial, arises from events that took place on 7 August 1998 in Nairobi
and Dar es Salaam. That morning,
in quick succession, the United States
embassies in those two cities were rocked by violent explosions that all but
destroyed them.
In Nairobi 212 were killed and more than 4 500 injured and in
Dar es Salaam 11 were killed and 85 injured. A federal grand jury
had been
sitting in New York since the mid-nineties investigating the activities of an
organisation called Al Qaeda founded, led
and financed by a Saudi
multi-millionaire, Usama bin Laden. The grand jury concluded that the attacks
on the two embassies were
the work of Al Qaeda in its ongoing international
campaign of terror against the United States and its allies.
[9] Later,
the grand jury indicted 15 men on a total of 267 counts, including conspiracy to
murder, kidnap, bomb and maim United
States nationals; conspiracy to destroy
United States buildings, property and national defence facilities; bombing of
the two embassies
and murder of the 223 persons there killed. Of the 15 named
and indicted conspirators, four are currently on trial: Mohamed and
three other
men. Mohamed is a Tanzanian national by birth and lived there until recently.
According to the indictment, he procured
a false passport in May 1998, rented a
house, bought a motor vehicle for use by the conspirators and actively
participated in the
preparations for the bombing of the Dar es Salaam
embassy.
[10] Mohamed obtained a visitor’s visa from the South
African High Commission in Dar es Salaam the day before the explosions
and left
Tanzania by road the day after. Travelling via Mozambique to South Africa he
entered the country on 16 August 1998 and travelled
to Cape Town where he
obtained employment — and later lodgings — with the second
applicant, Mr Abdurahman Dalvie (“Dalvie”).
In due course he
applied for asylum — under his assumed name and on spurious grounds
— and was afforded enhanced temporary
residence status. He was issued
with a temporary residence permit that had to be renewed periodically pending
the decision on his
application for asylum. As far as is known, Mohamed lived
and worked quietly in Cape Town during the ensuing year while his application
was being processed.
[11] In the meantime, however, Mohamed had been
indicted by the grand jury and on 17 December 1998 a warrant for his arrest was
issued
out of the Federal District Court for the Southern District of New York
on charges of “murder, murder conspiracy [and] attack
on US
facility”. The following month Interpol, Washington DC, at the request of
the FBI, put out an international “wanted”
notice with photographs
and a description of Mohamed, listing “murder of US nationals outside the
United States; conspiracy
to murder US nationals outside the United States;
attack on a federal facility resulting in death” and cautioning that he
should
be considered armed and dangerous.
[12] From about 12 August
1999, the South African Police Service and the Department of Home Affairs were
aware of the investigation
by the FBI into the bombings of the two American
embassies and were asked to provide it with information concerning another
suspect
named Ally Hassan Rehani. Then on 30 August 1999 an FBI agent
identified Mohamed while searching through the asylum-seekers records
in Cape
Town with the permission of the seventh respondent, the Chief Immigration
Officer, Department of Home Affairs, Cape Town,
Mr Christo Terblanche
(“Terblanche”). These records contain both fingerprints and
photographs of applicants for asylum
and the agent was able to make the
identification despite the pseudonym Mohamed used.
[13] The next day,
Terblanche sent the Directorate: Alien Control, Department of Home Affairs Head
Office in Pretoria a copy of the
warrant for Mohamed’s arrest as well as
copies of an associated letter to Interpol and the FBI “wanted”
poster.
In the covering letter Terblanche requested that Mohamed be declared a
prohibited person as a matter of
urgency1[0] and stressed that it was
of the utmost importance that he be stopped should he try to leave South
Africa.
[14] In the week of 13 September 1999 the second and sixth
respondents, the Minister of Justice and Constitutional Development and
the
National Director of Public Prosecutions (“the Minister” and
“the NDPP” respectively), were in Washington
DC for the signing of a
new extradition treaty between South Africa and the United States to replace one
dating from 1951. A political
offence
exception1[1] that had been
contained in the 1951 treaty was not re-embodied in the new treaty, which has
not yet come into force. Also, the new
treaty introduced a provision for the
surrender of a fugitive with his or her consent without further extradition
proceedings.1[2] While in the
United States the Minister and the NDPP were invited guests at an in-depth FBI
briefing session in New York concerning
the Nairobi and Dar es Salaam embassy
bombings. They were informed that a suspect was residing in Cape Town and that
FBI agents
were “working on apprehending” him. According to a
Department of Foreign Affairs report on the meeting, the Minister
at one point
observed:
“that the FBI should not merely discontinue their relationship with their counterpart agencies in SA once they had achieved their objective of apprehending the suspected bomber and bringing him to the US to stand trial.”
[15] At about the same
time,1[3] two meetings were held at
the offices of the Independent Directorate for Organised Crime
(“IDOC”). At the first, attended
by Terblanche and an FBI special
supervisory agent, senior representatives of IDOC were informed:
“of the combined investigation between Immigration and the FBI into fugitives connected to the bomb attacks on US embassies in Nairobi, and Dar Es Salaam on 8 August 1998".
The second meeting, attended by the
same people and also by the NDPP and the Deputy Director-General of the National
Intelligence
Agency, was:
“convened to discuss possible links between the fugitives an [sic] local terrorist attacks and a possible national threat. Also under discussion was the new treaty signed between South Africa and America on 16 September 1999 where Mr Ngcuka and Minister P Maduna [were] briefed on the two bombings and possible arrests in South Africa.”
[16] Mohamed was due to call
at the refugee receiving office in Cape Town by 5 October 1999 for the extension
of his temporary residence
permit1[4] and members of the Aliens
Control Unit together with members of the FBI started a surveillance programme
there on 2 October 1999
in anticipation of his calling. This he did on the
morning of 5 October 1999 at 09:15 and was arrested there and then. Present
were Terblanche, an FBI agent and an immigration officer. According to
Terblanche, he warned Mohamed:
“as is customary after all arrests, that I [Terblanche] was an immigration officer, that he was under arrest, that he was under no duty to say anything to me but that anything he did say might be used in evidence against him, and that he was entitled to a legal representative if he so wished.”
This is disputed by the applicants. Be that
as it may, Mohamed was taken to a car waiting in the basement of the building
and driven
to a holding facility at Cape Town International Airport, where he
was questioned by Terblanche and a colleague of his, a Mr
Christians.
[17] According to an affidavit by Terblanche the questioning
was conducted by Christians, who prefaced the session with an explanation
that
they:
“wanted to ask him questions in order to verify his status in the country. [Christians] asked [Mohamed] whether he had any objection to answering questions and again told [Mohamed] that he was entitled to a legal representative if he so wished. He said, too, that if [Mohamed] did not co-operate he might be further charged under the provisions of the Aliens Act. [Mohamed] responded simply by saying ‘I will tell you everything you want to know.’ The first question Mr Christians asked him was ‘What is your name?’ The answer to this was ‘Khalfan Khamis Mohamed.’ In other words, the first answer [Mohamed] gave was an admission that he had entered the country under a false name and passport.”
Although the
applicants disputed some of these allegations by Terblanche, it is not necessary
to engage in any detailed analysis of
the contested material. It is common
cause that an interrogation of some two hours or more ensued and that Christians
typed up a
statement running to close on three pages of single-spaced typing
covering in extensive detail Mohamed’s life from his birth
in Zanzibar to
his departure for South Africa, his family set-up, the circumstances of his
acquiring the false passport, and chapter
and verse of his journey to Cape Town
and his sojourn there.
[18] What the statement does not minute is any
warning as to the protection against self-incrimination or the right to remain
silent.
There is no mention of the right to legal representation, nor that any
such rights were waived. Although Terblanche and Christians
alleged in their
affidavits that Mohamed had been given a choice as to whether he should be
removed from South Africa to Tanzania
or the United States and had expressed a
clear and reasoned preference for the latter, the statement is silent on the
point. Indeed,
as Terblanche and Christians would have it, Mohamed feared for
his life at the hands of vengeful Tanzanians should he be repatriated.
He
wanted to join with his comrades in the glory of being tried for their heroic
conduct and, God willing,1[5] to die
for the cause. The statement lacks any intimation that the bar placed on
removal from South Africa within 72 hours of a deportee’s
arrest,
contained in section 52 the Act, was drawn to Mohamed’s attention.
Terblanche and Christians alleged that Mohamed
had freely and unreservedly
— even brazenly — disclosed his part in the terrorist plot to bomb
the embassies in Nairobi
and Dar es Salaam; yet the statement is silent on the
topic. Perhaps that is because the South African officials felt the bombing
of
the United States embassies was none of their business but it is curious that
there is no indication that Mohamed’s possible
contact with terrorists in
South Africa was investigated. After all, Mohamed’s alleged connection
with the embassy bombings
had prompted Terblanche to stress to his head office
that Mohamed should not be allowed to leave the country and the meeting with
IDOC and the senior officials had been convened to discuss possible links
between Mohamed and “local terrorist attacks and
a possible national
threat”.
[19] However, as will become apparent later, the
statement, both as to what it says and, more specifically, as to what it does
not
say, is ultimately of no real significance. In any event, as to what passed
between Mohamed and the immigration officers there is
a conflict of evidence
that cannot be resolved on the papers.
[20] After he had signed the
Christians transcript, Mohamed was handed over to members of the FBI. He was
interrogated by them over
a period of two days, during which he made a lengthy
statement, the contents of which are so potentially prejudicial to the security
of the United States that its publication has been embargoed by the trial judge
and did not form part of the data disclosed in the
High Court. The statement
has, however, been admitted in evidence before the jury in the United States and
apparently comprises
a comprehensive and damning confession of Mohamed’s
enthusiastic and unrepentant participation in the murderous bombing of
the Dar
es Salaam embassy.
[21] During the afternoon of Mohamed’s arrest
four immigration officials, three FBI members and a person described by
Terblanche
as “a State department official”, presumably an American,
searched, photographed and chemically examined Mohamed’s
lodgings at
Dalvie’s house. They told Dalvie that they:
“had come to collect [Mohamed’s] goods as he was being sent back to Tanzania because he had entered the country under false names. Mr Dalvie asked whether it would help to get a lawyer to represent [Mohamed] and [Terblanche] said [Dalvie] could do that, but in [his] view it would be a waste of money, because [Mohamed] had admitted entering the country with a false document. The Dalvies did ask whether they could see [Mohamed], and [Terblanche] said no, because [he] knew that [Mohamed] was being held in a restricted area of the airport, barred to the public, for which a visitor’s permit would not be issued.”
[22] The manifest and settled intention on
the part of the United States government agents, both in New York when they
briefed the
Minister and the NDPP in mid-September and thereafter in Cape Town,
was to take Mohamed to New York to stand trial for the vicious
crimes he had
committed against their country. Terblanche does not explain how, in the face
of this, he could truthfully have told
the Dalvies that Mohamed was due to be
sent to Tanzania. Nor does he say why it would have been futile for Mohamed to
have been
afforded the benefit of independent legal advice. Indeed, according
to Terblanche and Christians, the latter had at the outset of
the interrogation
expressly informed Mohamed of his right to legal representation.
[23] It
is also hardly conceivable that Terblanche and his three colleagues present at
the time of Dalvie’s enquiry could have
been unaware of the provisions of
section 52 of the Act, in a sense their charter, and the breathing space it
affords prohibited
persons facing deportation. There was no pressing urgency if
Mohamed were to be sent to Tanzania. Moreover, Terblanche’s
suggestion
that access for Dalvie to the detainee could not have been arranged also rings
singularly hollow. Terblanche was, after
all, the Chief Immigration Officer who
had planned and executed Mohamed’s arrest, who had taken him to the
holding facility
at the airport and who was clearly in control of the man and in
overall charge of the case. Indeed, the excuse is so lame as to
be
disingenuous. If, for some unexplained reason, permission for access to the
holding facility was not in Terblanche’s gift
and could not be procured
from the (unnamed) repository of this power, there was no reason why Terblanche
could not have had Mohamed
removed to any other safe place.
[24] The
inference is well nigh irresistible that the Dalvies were fobbed off to ensure
that Mohamed would continue to be denied
access to a lawyer and would remain
incommunicado. That might then give rise to the even more sinister inference
that Mohamed was
deliberately kept isolated and uninformed in order to
facilitate his removal by the FBI agents. However, these issues were not
adequately
canvassed in the court below and there may possibly be some less
sinister construction to put on the proven facts. In any event,
for reasons
that will become plain later, the handing over of Mohamed for removal to the
United States, as well as the subsequent
removal, were on the respondents’
own showing in breach of the Act and infringed Mohamed’s constitutional
rights.
[25] On 6 October 1999, after the FBI had questioned Mohamed,
Detective Captain Barkhuizen of the South African Police Service questioned
him
in connection with bombing incidents in the Western Cape and specifically a
bombing that had been perpetrated at a restaurant
called Planet Hollywood
shortly after Mohamed’s arrival in the country. Barkhuizen satisfied
himself that Mohamed could not
be linked to urban terror in the Western
Cape.
[26] Later on 6 October Mohamed was delivered into the custody of
the FBI for removal by them to the United States. From the outset,
the case
made out by the applicants was that such delivery was in breach of the Act and
infringed Mohamed’s constitutional
rights. They challenged the propriety
of the delivery and removal, saying they constituted a disguised extradition
which infringed
Mohamed’s right to claim that the South African
authorities stipulate as a condition of his removal to the United States that
an
undertaking be given by the United States authorities that the death penalty
would not be sought or carried out. Although Terblanche
deposed to more than
one affidavit dealing with the point, and although the NDPP also traversed the
contention in an affidavit, it
can nevertheless not be ascertained with any
certainty when — and by whom — the decision was taken on behalf of
the South
African government to hand Mohamed over to the American
government.
[27] What is known is that an aeroplane was specially sent
from the United States to fetch Mohamed and that he was flown out of South
Africa on 6 October 1999 in the custody of a number of FBI agents, accompanied
by a United States Attorney for the Southern District
of New
York1[6] and a medical doctor. They
arrived in New York the next day and the day thereafter Mohamed appeared in the
Federal Court for the
Southern District of New York on the charges mentioned
above. The trial judge formally notified him that he faced the death penalty
on
a number of the charges.
[28] That, then, is the factual matrix in which
the legal issues are to be considered. We turn to address them now. They are,
in
the order they will be addressed:
(i) The validity of the
deportation of Mohamed.
(ii) Deportation or extradition involving the
possibility of capital punishment.
(iii) The legal efficacy of consent to
deportation or extradition.
(iv) The relief sought.
The validity
of the deportation in the present case
[29] In principle there is a
clear distinction between extradition and
deportation.1[7] Extradition
involves basically three elements: acts of sovereignty on the part of two
states; a request by one state to another state
for the delivery to it of an
alleged criminal; and the delivery of the person requested for the purposes of
trial or sentence in
the territory of the requesting state. Deportation is
essentially a unilateral act of the deporting state in order to get rid of
an
undesired alien. The purpose of deportation is achieved when such alien leaves
the deporting state’s territory; the destination
of the deportee is
irrelevant to the purpose of deportation. One of the important distinguishing
features between extradition and
deportation is therefore the purpose of the
state delivery act in question. Where deportation and extradition coincide in
effect,
difficulties can arise in practice in determining the true purpose and
nature of the act of delivery. This will, to the extent relevant
to the present
case, be dealt with later in this judgment.
[30] [ In its judgment the court below relied heavily on British and Commonwealth authority on the question of extradition and deportation. In argument in this Court counsel for the government did likewise. In Britain and the rest of the Commonwealth the universally accepted view has long been that surrender may not be granted in the absence of a treaty obligation and statutory warrant; at the very least there must be statutory warrant. In this regard Lord Denning MR stated the following in R v Brixton Prison (Governor), Ex parte Soblen:1[8]
“It is unlawful, therefore, for the Crown to surrender a fugitive criminal to a foreign country unless it is warranted by an extradition treaty with that country.”1[9]
[31] In
Britain the Crown has had a royal prerogative to expel aliens and send them
home, whenever it considered that their presence
in Britain was not conducive to
the public good.2[0] This
prerogative has, at least since 1953, been supplanted by statute. Under the
Aliens Order 1953 there was a power in the Crown
to deport an alien if the
Secretary of State “deems it to be conducive to the public good”
under article 20(2)(b)2[1] and in
terms whereof the Home Secretary was clearly empowered to choose the ship or
aircraft and thus the alien’s destination.
The Aliens Order has been
replaced by section 3(5)(b) and schedule 3 of the Immigration Act, 1971, which
likewise supplant the prerogative.
[32] [ The position in this country must be considered in the light of the Constitution and the relevant legislation. In President of the Republic of South Africa and Another v Hugo2[2] this Court came to two important conclusions regarding prerogative powers under the interim Constitution. First, the powers of the President which are contained in section 82(1) of the interim Constitution have their origin in the prerogative powers exercised under former constitutions by South African heads of state; second, there are no powers derived from the royal prerogative which are conferred upon the President other than those enumerated in section 82(1).2[3] This is equally so under the present Constitution and its equivalent provisions and was expressly so held in Hugo.2[4] The powers of the President under the present Constitution originating from the royal prerogative are those in section 84(2). This subsection does not provide for any power to deport an alien.
[33] Accordingly
the state’s power to deport, relevant to the present case, can be derived
only from the provisions of the
Act. Chapter VI, in sections 44 to 51, deals
extensively with the state’s power to deport prohibited persons and
non-citizens.
None of these provisions empowers the state to determine the
destination of such deportation, but regulation 23, promulgated under
the
provisions of section 56, does.
[34] Regulation 23, dealing with the
destination of such removal, reads as follows:
“23. Any person to be removed from the Republic under the Act, shall —
(a) if he or she is the holder of a passport issued by any other country or territory, be removed to that country or territory; or
(b) if he or she is not the holder of such a passport —
(i) be removed to the country or territory of which he or she is a citizen or national; or
(ii) and if he or she is stateless, be removed to the country or territory where he or she has a right of domicile.”
[35] Counsel
devoted much time in argument to the question whether the provisions of this
regulation are peremptory or not. In our
view such an approach is too narrow.
The additional question is whether the destinations enumerated in regulation 23
constitute
a closed category. The word “shall”, which introduces
the provisions of paragraphs (a) and (b) dealing with what is
to be done with a
person who “is to be removed from the Republic under the Act”, is
clearly mandatory in form and there
is nothing in the context to indicate the
contrary. Once it has been decided to remove such person and such decision
persists, whether
the decision to remove is obligatory or permissive, the state
has no discretion but to remove the person to the destination as prescribed
in
paragraphs (a) and (b). The further question, however, is whether the state has
any power regarding the determination of the
destination to which the person is
to be removed under this regulation over and above that provided for in the
regulation.
[36] In our view it clearly has not. The state has no
remaining prerogative power to deport, for such power is not included in section
84(2) of the Constitution. Its power to deport and determine the destination of
such deportation can only be found within the four
corners of the Act and the
regulations. In terms of regulation 23 such power is limited, regarding
destination, to the places mentioned
in paragraphs (a) and (b) thereof and
determined in the manner therein prescribed. In any event it is clear that
regulation 23 comprehensively
covers all possibilities; the person with a
passport, the person who is a citizen or national of a country and the stateless
person.
It covers the field of any common law power the state might have
had.
[37] It is common cause on the facts of this case that if the
destination of deportation is to be determined exclusively by the provisions
of
regulation 23, the United States is not a destination permitted by the
regulation. It follows that in the present case the South
African authorities
were not empowered to deport Mohamed to the United States. The argument on
behalf of the government that Mohamed
allegedly consented to his deportation to
the United States and that such consent validated such deportation will be
considered later.
Deportation or extradition and the death
penalty
[38] The lawfulness of the conduct of the South African
immigration officers in handing over Mohamed to the FBI for them to take
him to
the United States was challenged on a further, even more fundamental and
entirely different basis. The argument is derived
from the obligation imposed
on the South African state by the Constitution to protect the fundamental rights
contained in the Bill
of Rights.2[5]
The rights in issue here are the right to human dignity, the right to life and
the right not to be treated or punished in a cruel,
inhuman or degrading
way.2[6] According to the argument
the Constitution not only enjoins the South African government to promote and
protect these rights but
precludes it from imposing cruel, inhuman or degrading
punishment. The Constitution also forbids it knowingly to participate, directly
or indirectly, in any way in imposing or facilitating the imposition of such
punishment. In particular, so the argument runs, this
strikes at the imposition
of a sentence of death. Therefore, even if it were permissible to deport
Mohamed to a destination to which
he had consented and even if he had given his
informed consent to such removal, the government would have been under a duty to
secure
an undertaking from the United States authorities that a sentence of
death would not be imposed on him, before permitting his removal
to that
country.
[39] [ The cornerstone of this argument is the finding of this Court in S v Makwanyane and Another2[7] that capital punishment is inconsistent with the values and provisions of the interim Constitution. When, subsequent to this decision, the Constitutional Assembly came to deal with a Bill of Rights for the “final” Constitution, capital punishment was raised as an issue and the question whether there should be an exception to the right to life permitting such punishment was debated.2[8] No such exception was, however, made; nor is there anything in the 1996 Constitution to suggest that the decision in Makwanyane has ceased to be applicable. On the contrary, the values and provisions of the interim Constitution relied upon by this Court in holding that the death sentence was unconstitutional are repeated in the 1996 Constitution. The importance of human dignity to which great weight was given in Makwanyane is emphasised in the 1996 Constitution by including it not only as a right, but also as one of the values on which the state is founded.2[9]
[40] In
the various judgments given in Makwanyane the history of capital
punishment, its application in South Africa under apartheid, the attitude of
other countries to such punishment,
and the international trend against capital
punishment in recent times were dealt with at length. This Court, after a full
and detailed
consideration of the relevant provisions of the interim
Constitution and the arguments for and against capital punishment, concluded
unanimously that the death sentence was inconsistent with the values and
provisions of the interim Constitution. There is no need
to cover that ground
again. It should be added, however, that the international community shares
this Court’s view of the
death sentence, even in the context of
international tribunals with jurisdiction over the most egregious offences,
including genocide.3[0] Counsel for
the government correctly accepted that capital punishment is also inconsistent
with the values and provisions of the
1996 Constitution and that the issues in
this appeal must be dealt with on the basis of the decision in
Makwanyane.
[41] As had been the case in the High Court, much of
the argument in this appeal was directed to the question whether the removal
of
Mohamed to the United States was a deportation or a disguised extradition. The
distinction was said to be this. If he was deported
that would have been a
lawful act on the part of the South African government. The fact that Mohamed
was to be “deported”
to the United States where he would immediately
be put on trial for an offence that carried the death penalty was not relevant.
There
is nothing in our Constitution that precluded the government from
deporting an undesirable alien, or that required it to secure an
assurance from
the United States government that the death sentence would not be imposed on
Mohamed if he were to be convicted.
If, however, what happened was in substance
an extradition, it would have been unlawful because the correct procedures were
not followed.
Moreover, if the removal had been effected by way of extradition,
it might have been necessary to secure an assurance from the United
States
government as a condition of the extradition that the death sentence would not
be
imposed.3[1]
[42] Deportation
and extradition serve different purposes. Deportation is directed to the
removal from a state of an alien who has
no permission to be there. Extradition
is the handing over by one state to another state of a person convicted or
accused there
of a crime, with the purpose of enabling the receiving state to
deal with such person in accordance with the provisions of its law.
The
purposes may, however, coincide where an illegal alien is “deported”
to another country which wants to put him on
trial for having committed a
criminal offence the prosecution of which falls within the jurisdiction of its
courts.
[43] Deportation is usually a unilateral act while extradition
is consensual. Different procedures are prescribed for deportation
and
extradition, and those differences may be material in specific cases,
particularly where the legality of the expulsion is challenged.
In the
circumstances of the present case, however, the distinction is not relevant.
The procedure followed in removing Mohamed
to the United States of America was
unlawful whether it is characterised as a deportation or an extradition.
Moreover, an obligation
on the South African government to secure an assurance
that the death penalty will not be imposed on a person whom it causes to be
removed from South Africa to another country cannot depend on whether the
removal is by extradition or deportation. That obligation
depends on the facts
of the particular case and the provisions of the Constitution, not on the
provisions of the empowering legislation
or extradition treaty under which the
“deportation” or “extradition” is carried
out.
[44] Mohamed entered South Africa under an assumed name using a
false passport. He applied for asylum giving false information in
support of
his application and was issued with a temporary visa to enable him to remain in
South Africa while his application was
being considered. Those facts justified
the South African government in deporting him. That, however, is only part of
the story,
for the crucial events are those that happened after Mohamed had
secured his temporary visa. Having been identified by the FBI as
a suspect for
whom an international arrest warrant had been issued in connection with the
bombing of the United States embassy in
Tanzania, he was apprehended by the
South African immigration authorities in a joint operation undertaken in
cooperation with the
FBI. Within two days of his arrest and contrary to the
provisions of the Act he was handed over to the FBI by the South African
authorities for the purpose of being taken to the United States to be put on
trial there for the bombing of the embassy. On his
arrival in the United States
he was immediately charged with various offences relating to that bombing and
was informed by the court
that the death sentence could be imposed on him if he
were convicted. That this was likely to happen must have been apparent to
the
South African authorities as well as to the FBI when the arrangements were made
for Mohamed to be removed from South Africa to
the United
States.
[45] Another suspect, Mr Mahmoud Mahmud Salim, alleged to be a
party to the conspiracy to bomb the embassies, was extradited from
Germany to
the United States. Germany has abolished capital punishment and is also party to
the European Convention on Human Rights.
The German government sought and
secured an assurance from the United States government as a condition of the
extradition that if
he is convicted, Salim will not be sentenced to death. This
is consistent with the practice followed by countries that have abolished
the
death penalty.
[46] ( Recently, in Minister of Justice v Burns,3[2] the Supreme Court of Canada had occasion to reconsider its attitude to the extradition of fugitives to a country where they would face the death penalty. It had previously been held by a majority of that Court in Kindler v Canada (Minister of Justice)3[3] and Reference re Ng Extradition (Canada)3[4] that there was no obligation on Canada before extraditing a suspect to a country that has the death penalty to seek an assurance from the receiving state that the death penalty will not be imposed. In a unanimous judgment the Court held in Burns3[5] that in the light of developments since the decisions in Kindler and Ng, there is now an obligation on the Canadian government, in the absence of exceptional circumstances, to seek such an assurance. The Court deliberately refrained from anticipating what those circumstances might be.3[6]
[47] The
decision in Burns turned on section 7 of the Canadian Charter which
provides that:
“[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the provisions of fundamental justice.”
The two suspects whose
extradition was sought faced charges of murdering the father, mother and sister
of one of them, in what are
described in the judgment as “brutal and
shocking coldblooded murders”. After weighing the factors for and against
extradition
without assurances, the Court concluded that in the circumstances of
that case, extradition without assurances that the death penalty
would not be
imposed violated the principles of fundamental justice, and was not justifiable
under section 1 of the
Charter.3[7]
[48] Our
Constitution provides that “everyone has the right to
life”.3[8] There are no
exceptions to this right. However, like all other rights in the Bill of Rights,
it is subject to limitation in terms
of section 36 of the Constitution. The
requirements prescribed by section 36 are that the limitation must be reasonable
and justifiable
in an open and democratic society based on human dignity,
equality and freedom, taking into account all relevant factors including
those
mentioned in the section.3[9] These
considerations were taken into account by this Court in Makwanyane in
holding that capital punishment was not justifiable under the interim
Constitution. In the light of these provisions of our Constitution
we can
revert to the argument mentioned
above4[0] that a
“deportation” or “extradition” of Mohamed without first
securing an assurance that he would not be
sentenced to death or, if so
sentenced, would not be executed would be unconstitutional.
[49] In
Makwanyane Chaskalson P said that by committing ourselves to a society
founded on the recognition of human rights we are required to give particular
value to the rights to life and dignity, and that “this must be
demonstrated by the State in everything that it
does”.4[1] In handing Mohamed
over to the United States without securing an assurance that he would not be
sentenced to death, the immigration
authorities failed to give any value to
Mohamed’s right to life, his right to have his human dignity respected and
protected
and his right not to be subjected to cruel, inhuman or degrading
punishment.
[50] ( Counsel for the government contended that although this requirement might be applicable to extraditions, it is not applicable to deportations. In support of this contention he relied on a series of Canadian cases the last of which is Halm v Canada (Minister of Employment and Immigration)(T.D.)4[2] and on the judgment of the Court of Appeal of England and Wales in Soblen.4[3] These cases dealt with the validity of deportation proceedings in circumstances where the deported person was likely to face a criminal charge in the country to which he or she was to be deported. In all the cases a challenge to the procedure adopted based on a contention that there should have been a resort to extradition and not deportation was rejected.
[51] The decisions in these cases are
referred to in the judgment of the High Court. They are, however, not directly
relevant to
the question that has to be decided in the present case, which
depends upon the values and provisions of our Constitution.
Soblen’s case was decided before the implementation in Britain of
the European Convention on Human Rights. At that time there were
no
constitutional or treaty constraints which curtailed the powers of the
executive. The only question was whether the removal of
the applicant complied
with the requirements for deportations under English law. The Court held that
it did. That decision is of
little assistance in deciding what our Constitution
required our government to do in the present case.
[52] The Canadian
cases were all decided before the decision of the Supreme Court of Canada in
Burns. Canadian law did not then consider the removal of a person to
another country where he or she would face a death sentence to be
contrary to
the principles of fundamental justice. In Kindler, La Forest J suggested
that there is no reason why the same considerations should not apply to
deportations and extraditions in determining
what is required to meet the
standards of the fundamental principles of
justice.4[4] The deportation cases
may therefore have to be reconsidered by the Canadian courts in the light of the
decision in Burns if in the future deportation rather than extradition is
used as the means of removing a fugitive to a country where he or she faces
the
death penalty.
[53] But whatever the position may be under Canadian law
where deprivation of the right to life, liberty and human dignity is dependent
upon the fundamental principles of justice, our Constitution sets different
standards for protecting the right to life, to human
dignity and the right not
to be treated or punished in a cruel, inhuman or degrading way. Under our
Constitution these rights are
not qualified by other principles of justice.
There are no such exceptions to the protection of these rights. Where the
removal
of a person to another country is effected by the state in circumstances
that threaten the life or human dignity of such person,
sections 10 and 11 of
the Bill of Rights are
implicated.4[5] There can be no
doubt that the removal of Mohamed to the United States of America posed such a
threat. This is perhaps best demonstrated
by reference to the case of Salim who
was extradited from Germany to the United States subject to an assurance that
the death penalty
would not be imposed on him. This assurance has been
implemented by the United States and Salim is to be tried in proceedings in
which the death sentence will not be sought.
[54] If the South African
authorities had sought an assurance from the United States against the death
sentence being imposed on
Mohamed before handing him over to the FBI, there is
no reason to believe that such an assurance would not have been given. Had
that
been the case, Mohamed would have been dealt with in the same way as his alleged
co-conspirator Salim. The fact that Mohamed
is now facing the possibility of a
death sentence is the direct result of the failure by the South African
authorities to secure
such an undertaking. The causal connection is clear
between the handing over of Mohamed to the FBI for removal to the United States
for trial without securing an assurance against the imposition of the death
sentence and the threat of such a sentence now being
imposed on
Mohamed.
[55] It is not only sections 10 and 11 of the Constitution that
are implicated in the present case. According to section 12 (1)(d)
and (e) of
our Constitution, everyone has the right to freedom and security of the person,
which includes the right not to be tortured
in any way and not to be treated or
punished in a cruel, inhuman or degrading way. For the reasons given in
Makwanyane, South African law considers a sentence of death to be cruel,
inhuman and degrading punishment.
[56] ( Article 3 of the European Convention on Human Rights provides that “no one shall be subjected to torture or to inhuman or degrading treatment or punishment”. In Soering v United Kingdom4[6] the European Court of Human Rights held that:
“[i]t would hardly be compatible with the underlying values of the Convention . . . were a Contracting State knowingly to surrender a fugitive to another State where there were substantial grounds for believing that he would be in danger of being subjected to torture, however heinous the crime allegedly committed. Extradition in such circumstances, while not explicitly referred to in the brief and general wording of Article 3, would plainly be contrary to the spirit and intendment of the Article, and in the Court’s view this inherent obligation not to extradite also extends to cases in which the fugitive would be faced in the receiving State by a real risk of exposure to inhuman or degrading treatment or punishment proscribed by that Article.”4[7]
[57] Soering’s
case was concerned with extradition, but similar sentiments were expressed by
the same Court in Hilal v United
Kingdom,4[8] a case dealing with
the deportation of a Tanzanian citizen from the United Kingdom to Tanzania,
which was held to breach Article
3 of the Convention because the deportee would
face a serious risk of being subjected to torture or inhuman and degrading
treatment
in Tanzania. The Court there said:
“The Court recalls at the outset that Contracting States have the right, as a matter of well-established international law and subject to their treaty obligations including the Convention, to control the entry, residence and expulsion of aliens. However, in exercising their right to expel such aliens, Contracting States must have regard to Article 3 of the Convention which enshrines one of the fundamental values of democratic societies. The expulsion of an alien may give rise to an issue under this provision where substantial grounds have been shown for believing that the person in question, if expelled, would face a real risk of being subjected to treatment contrary to Article 3 in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country (e.g. the Ahmed v Austria . . . and Chahal v the United Kingdom judgment[s]).”4[9] (Citations omitted.)
[58] ( An equally instructive case is Chahal v United Kingdom5[0] where the Grand Chamber of the European Court of Human Rights held that deportation of an individual to his state of origin where he would face inhuman or degrading treatment or punishment would be contrary to the provisions of Article 3 of the Convention. The Court said it was:
“well aware of the immense difficulties faced by States in modern times in protecting their communities from terrorist violence. However, even in these circumstances, the Convention prohibits in absolute terms torture or inhuman or degrading treatment or punishment, irrespective of the victim’s conduct . . . The prohibition provided by Article 3 against ill-treatment is equally absolute in expulsion cases. Thus, whenever substantial grounds have been shown for believing that an individual would face a real risk of being subjected to treatment contrary to Article 3 if removed to another State, the responsibility of the Contracting State to safeguard him or her against such treatment is engaged in the event of expulsion. In these circumstances, the activities of the individual in question, however undesirable or dangerous, cannot be a material consideration.”5[1] (Footnote omitted.)
[59] These cases are consistent with the
weight that our Constitution gives to the spirit, purport and objects of the
Bill of Rights5[2] and the positive
obligation that it imposes on the state to “protect, promote and fulfil
the rights in the Bill of
Rights”.5[3] For the South
African government to cooperate with a foreign government to secure the removal
of a fugitive from South Africa to
a country of which the fugitive is not a
national and with which he has no connection other than that he is to be put on
trial for
his life there, is contrary to the underlying values of our
Constitution. It is inconsistent with the government’s obligation
to
protect the right to life of everyone in South Africa, and it ignores the
commitment implicit in the Constitution that South Africa
will not be party to
the imposition of cruel, inhuman or degrading punishment.
[60] The fact
that the government claims to have deported and not to have extradited Mohamed
is of no relevance. European courts
draw no distinction between deportation and
extradition in the application of Article 3 of the European Convention on Human
Rights.
Nor does the Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment of which South Africa is a
signatory and which
it ratified on 10 December 1998. Article 3(1) of this Convention
provides:
“No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.”5[4]
It
makes no distinction between expulsion, return or extradition of a person to
another state to face an unacceptable form of punishment.
All are prohibited,
and the right of a state to deport an illegal alien is subject to that
prohibition. That is the standard that
our Constitution demands from our
government in circumstances such as those that existed in the present
case.
[61] The removal of Mohamed to the United States could not have
been effected without the cooperation of the South African immigration
authorities. They cooperated well knowing that he would be put on trial in the
United States to face capital charges. That he should
be arrested and put on
trial was clearly a significant and possibly the predominant motive that
determined the course that was followed.
Otherwise, why instruct the officials
at the border to prevent him from leaving South Africa? And why cooperate in
the process
of sending him to the United States, a country with which he had no
connection? They must also have known that there was a real
risk that he would
be convicted, and that unless an assurance to the contrary were obtained, he
would be sentenced to death. In
doing so they infringed Mohamed’s rights
under the Constitution and acted contrary to their obligations to uphold and
promote
the rights entrenched in the Bill of Rights.
Consent to
deportation or extradition
[62] A submission strenuously advanced on
behalf of the government was that Mohamed had consented to his removal to the
United States,
whether the removal is properly to be characterised as a
deportation or a disguised extradition. It is open to doubt whether a person
in
Mohamed’s position can validly consent to being removed to a country in
order to face a criminal charge where his life is
in
jeopardy.5[5] The authorities ought
not to be encouraged to obtain consents of such a nature.
[63] We did
not have the benefit of full argument on this issue and it would accordingly be
unwise to express a view on it. We will,
without deciding, assume in favour of
the respondents, that a proper consent of such a nature would be enforceable
against Mohamed.
To be enforceable, however, it would have to be a fully
informed consent and one clearly showing that the applicant was aware of
the
exact nature and extent of the rights being waived in consequence of such
consent.5[6]
[64] An
indispensable component of such consent would be awareness on the part of
Mohamed that he could not lawfully be delivered
by the South African authorities
to the United States without obtaining an undertaking as a condition to such
delivery that if convicted
the death sentence would not be imposed on him or, if
imposed, would not be carried out. Clearly this duty on the part of the South
African government was important to Mohamed; and, inevitably, any consent given
by him in ignorance of that duty and of the literally
vital protection it
afforded him, was inchoate. And it must remain such unless and until it is
shown that the unqualified consent
by Mohamed to be taken to New York, there to
be put on trial for his life, was given at a time when he knew and understood
his right
to demand of the South African authorities that they perform their
duty to uphold the Constitution.
[65] The onus to prove such waiver is
on the government. Terblanche and Christians allege Mohamed freely, if not
eagerly, chose
to go to New York in the custody of the FBI agents. Mohamed
flatly denied this. So direct and one-dimensional a dispute of fact
cannot
really be resolved on the affidavits. Nor is it possible to ascertain a clear
preponderance of probabilities in favour of
the government version. Although a
show of bravado fired by religious fervour could explain why Mohamed would have
opted for New
York, it does remain curious that he would willingly put his life
in jeopardy. Nevertheless and notwithstanding Mohamed’s denial
on oath, we
will assume in favour of the government that its factual version of the consent
has been sufficiently established on
the papers before us. This would still not
assist it, for two reasons.
[66] First, none of the government deponents
even suggests that Mohamed was aware of his crucial right to demand this
protection
against exposure to the death penalty. Indeed, there is no suggestion
that any of the South African government officials concerned
(Terblanche,
Christians or the NDPP) ever considered this feature, let alone contemplated
informing Mohamed about it. On the contrary,
the impression created by their
affidavits is that they were content to let Mohamed go to New York once he had
made the election
to do so. And if regard is had to the surrounding
circumstances there can be little doubt that they were actually keen for him to
choose that option: the United States officials, having run one of the embassy
bombers to ground in Cape Town, were eager to bring
him to book. That their
South African counterparts actively cooperated in this endeavour is evident from
Terblanche’s initial
message to his head office that Mohamed should be
detained if he tried to leave the country and the sentiments expressed by the
Minister
at the FBI briefing in New York, followed by the close liaison and
teamwork in Cape Town from the time Mohamed had been identified
from the South
African immigration records to his removal to the United States.
[67] In
the second place, there is the profoundly disturbing circumstance that, on the
government’s own showing, Mohamed was
at no time afforded the benefit of
consulting a lawyer. That Mohamed was in a very serious predicament is
self-evident. Indeed,
for him it was a matter of life and death. He was a
relatively uneducated young man, untrained in the law, a fugitive in a foreign
land facing numerous grave charges in yet another foreign country and being
interrogated in isolation by two separate sets of law-enforcement
agents.
Terblanche and Christians were aware of the fundamental right of every detainee
to independent legal advice and knew it
was their duty promptly to inform
Mohamed of this right.5[7] They say
that upon Mohamed’s arrest by Terblanche and again when Christians
commenced the interrogation at the holding facility,
he was informed of this
right and waived it. They do not say that the seriousness of the case or the
statutory and constitutional
options were mentioned to him. In any event,
Mohamed denies having been informed of this right and the statement minuted by
Christians
is silent on the point. When Dalvie raised with Terblanche the
possibility of arranging legal representation for Mohamed, he was
brushed off
with the laconic statement that it would be a waste of money and that Dalvie
himself could not visit Mohamed. Mohamed
was at that stage still being
detained at Cape Town International Airport and competent legal advice could
have made a crucial difference
to the subsequent course of events. It follows
that the election Mohamed allegedly made there and then to accompany the FBI
agent
to the United States must have been to some extent influenced by his being
cut off from legal advice. Although we do not pertinently
find that there was
an infringement of the constitutional right to consult a lawyer, the
circumstances support the finding that there
was a material impairment of
Mohamed’s ability validly to waive any of his rights.
[68] We
accordingly conclude that it has not been established that any agreement which
Mohamed might have expressed to his being
delivered to the United States
constitutes a valid consent on which the government can place any reliance. Its
contention in this
regard is accordingly rejected. The handing over of Mohamed
to the United States government agents for removal by them to the United
States
was unlawful.
[69] That is a serious finding. South Africa is a young
democracy still finding its way to full compliance with the values and ideals
enshrined in the Constitution. It is therefore important that the state lead by
example. This principle cannot be put better than
in the celebrated words of
Justice Brandeis in Olmstead et al v United States:
“In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously . . . Government is the potent, omnipresent teacher. For good or for ill, it teaches the whole people by its example . . . If the government becomes a lawbreaker, it breeds contempt for the law; it invites every man to become a law unto himself; it invites anarchy.”5[8]
The
warning was given in a distant era but remains as cogent as ever. Indeed, for
us in this country, it has a particular relevance:
we saw in the past what
happens when the state bends the law to its own ends and now, in the new era of
constitutionality, we may
be tempted to use questionable measures in the war
against crime. The lesson becomes particularly important when dealing with
those
who aim to destroy the system of government through law by means of
organised violence. The legitimacy of the constitutional order
is undermined
rather than reinforced when the state acts unlawfully. Here South African
government agents acted inconsistently with
the Constitution in handing over
Mohamed without an assurance that he would not be executed and in relying on
consent obtained from
a person who was not fully aware of his rights and was
moreover deprived of the benefit of legal advice. They also acted
inconsistently
with statute in unduly accelerating deportation and then
despatching Mohamed to a country to which they were not authorised to send
him.
The relief to be ordered
[70] One of the grounds of
opposition advanced on behalf of the government — and one that found
favour with the High Court
— was that it would be wrong for a South
African court to issue any declaratory order expressing disapproval of the
arrest,
detention, interrogation and transfer of Mohamed to the FBI agents. He
was an alien who had entered South Africa fraudulently and
had left its
jurisdiction. With regard to the prayer for mandatory relief in the form of an
order on the government to seek to intercede
with the United States authorities
regarding the wrong done to Mohamed, the government’s opposition to any
form of order was
even more forceful. More specifically it was submitted that
any such an order would infringe the separation of powers between the
judiciary
and the executive. In substance the stance was that Mohamed had been
irreversibly surrendered to the power of the United
States and, in any event, it
was not for this Court, or any other, to give instructions to the
executive.
[71] We disagree. It would not necessarily be futile for
this Court to pronounce on the illegality of the governmental conduct in
issue
in this case. In the first instance, quite apart from the particular interest
of the applicants in this case, there are important
issues of legality and
policy involved and it is necessary that we say plainly what our conclusions as
to those issues are. And
as far as the particular interests of Mohamed are
concerned, we are satisfied that it is desirable that our views to be
appropriately
conveyed to the trial court. Not only is the learned judge
presiding aware of these
proceedings,5[9] but the very reason
why they were instituted by the applicants was said to be that our findings may
have a bearing on the case over
which he is presiding. On the papers there is a
conflict of opinion as between one of the defence lawyers on the one hand and a
member of the prosecution team on the other, both of whom have filed affidavits
expressing their respective views as to the admissibility
and/or cogency in the
criminal proceedings of any finding we might make. It is for the presiding
judge to determine such issues.
For that purpose he may or may not wish to have
regard to disputed material such as our findings. It is therefore incumbent on
this Court to ensure as best it can that the trial judge is enabled to exercise
his judicial powers in relation to the proceedings
in this Court; and an
appropriate order to that end will be made.
[72] Nor would it
necessarily be out of place for there to be an appropriate order on the relevant
organs of state in South Africa
to do whatever may be within their power to
remedy the wrong here done to Mohamed by their actions, or to ameliorate at best
the
consequential prejudice caused to him. To stigmatise such an order as a
breach of the separation of state power as between the executive
and the
judiciary is to negate a foundational value of the Republic of South
Africa,6[0] namely supremacy of the
Constitution and the rule of law. The Bill of Rights, which we find to have
been infringed, is binding on
all organs of state and it is our constitutional
duty6[1] to ensure that appropriate
relief is afforded to those who have suffered infringement of their
constitutional rights. On the facts
of the present case, however, and bearing
in mind the advanced state of the proceedings in New York, we believe that the
most appropriate
and effective order is the one that follows
below.
Costs
[73] The applicants would ordinarily have been
entitled to an order for costs in their favour, not only following their success
in
the suit but because they had raised against the government constitutional
issues of general importance. However, in this particular
case it would not be
appropriate to make such an order. We were told by counsel for the applicants
that pursuant to an order issued
by the judge presiding in the criminal case,
the litigation on behalf of Mohamed in South Africa was funded by the United
States
government. We were also told that any additional costs that may have
been incurred by Dalvie as a result of his participation were
negligible. An
order for costs in favour of the applicants would therefore effectively oblige
the South African government to reimburse
the United States government, for
whose benefit and at whose instance Mohamed had been handed over. Accordingly
no order as to the
costs in this court will be made. The order in the court
below directing the applicants to pay the government’s costs in that
court
must obviously be set aside.
The order
[74] The following
order issues:
1. Non-compliance by the applicants with the requirements
of the Constitutional Court Rules, 1998 is condoned and leave is granted
to
appeal directly to this Court.
2. The appeal is
upheld.
3. The order in the court below is set aside and in its place
the following order is made:
3.1 It is declared that the handing over of
Mohamed at Cape Town on or about 6 October 1999 by agents of the South African
government
to agents of the United States for removal by the latter to the
United States for him to stand trial in the Federal Court for the
Southern
District of New York on criminal charges in respect of which he could, if
convicted, be sentenced to death, was unlawful
in that:
3.1.1 It infringed
Mohamed’s rights under sections 10, 11 and 12(1)(d) of the Constitution to
human dignity, to life and not
to be treated or punished in a cruel, inhuman or
degrading way, inasmuch as a prior undertaking was not obtained from the United
States government that the death sentence would not be imposed on Mohamed or, if
imposed, would not be executed.
3.1.2 In terms of the provisions of Chapter
VI of the Aliens Control Act 96 of 1991 read with regulation 23 of the Aliens
Control
Regulations published under section 56 of the said Act, there existed at
the time of Mohamed’s removal from the Republic of
South Africa no
authority in law to deport or purportedly to deport or otherwise to remove or
cause the removal of Mohamed from the
Republic to the United States.
3.1.3 In
terms of section 52 of the Aliens Control Act 96 of 1991 the removal of Mohamed
from the Republic could not validly be effected
before the expiry of a period of
three days after he had been declared a prohibited person.
4. There
is no order as to costs.
5. The Director of this Court is authorised and
directed to cause the full text of this judgment to be drawn to the attention of
and
to be delivered to the Director or equivalent administrative head of the
Federal Court for the Southern District of New York as a
matter of
urgency.
Chaskalson P Madala J Sachs J
Ackermann J Mokgoro J Yacoob J
Goldstone J Ngcobo J Madlanga AJ
Kriegler J Somyalo AJ
For the applicants / appellants: MA Albertus SC and A Schippers (instructed
by J Ramages Attorneys, Athlone).
For the respondents: HP Viljoen SC and N Bawa (instructed by the State
Attorney, Cape Town).
For the amici curiae: A Katz and R Paschke (instructed by the Legal Resources Centre, Cape Town).
[1] Rule 11(1) of the Constitutional Court Rules provides that in urgent matters the President of the Court may dispense with the forms provided in the rules and give directions as to time, manner and procedure of disposal of the matter.
[2] Per Blignault J, Hlophe JP concurring, delivered on 20 April 2001.
[3] The initial application, launched on 14 November 2000, was aimed at obtaining sight of the official South African documents relating to Mohamed’s case and on 15 December 2000 Conradie J issued an interlocutory order for the production by the respondents of “all information in their possession in respect of which lawful privilege may not be claimed”. A bundle of documents was produced and a subsequent order by Hoffman AJ led to extracts of another document being delivered. The notice of motion was then amended to claim the substantive relief that remains in issue before this Court.
[4] The respondents cited are the President as head of the Executive, the Minister of Justice and Constitutional Development, the Minister of Home Affairs, the Minister of Safety and Security, the Minister of Foreign Affairs, the National Director of Public Prosecutions and the Chief Immigration Officer, Cape Town.
[5] The Society for the Abolition of the Death Penalty in South Africa and the Human Rights Committee Trust.
[6] Act 96 of 1991.
[7] The Aliens Control Regulations
published under Government Notice R999 (Government Gazette 17254) of 28 June
1996.
[8] The relevant provisions
of the Bill of Rights read as follows:
10 Human dignity
Everyone
has inherent dignity and the right to have their dignity respected and
protected.
11 Life
Everyone has the right to life.
12
Freedom and security of the person
(1) Everyone has the right to freedom
and security of the person, which includes the right —
(a) not to be
deprived of freedom arbitrarily or without just cause;
(b) not to be
detained without trial;
(c) to be free from all forms of violence from
either public or private sources;
(d) not to be tortured in any way;
and
(e) not to be treated or punished in a cruel, inhuman or degrading
way.
(2) . . . .
[9] Ordinarily, under rule 18(6) of the rules of this Court, the court of first instance should be asked to furnish a certificate as to, among other things, the prospects of success on appeal and whether it is in the interests of justice for the matter to be brought directly to this Court. Rule 31 of the rules affords this Court a general discretion, “on sufficient cause shown” to condone non-compliance with any of the rules and rule 11(1), as pointed out in n 1 above, makes provision for directions to be given in urgent cases.
1[0] In terms of section 39(2)(d) of the Act.
[1]1 Contained in article 6 of the 1951 treaty.
1[2] Article 19.
1[3] On 14 and 20 September 1999.
1[4] Issued in terms of s 41 of the Act to a prohibited person.
1[5] Christians ascribes to him the ubiquitous Muslim expression to that effect: “inshallah”.
1[6] It is interesting to note that this person, who forms part of the prosecution team in the cases against Mohamed and his co-accused, was present during lengthy discussions held with Mohamed in the course of the flight from Cape Town to New York.
1[7] See, generally, Shearer Extradition in International Law (The University Press, Manchester, 1971) 76—7, Botha “Extradition” in Joubert (ed) The Law of South Africa First Reissue vol 10 part 1 paras 279 and 283, and Botha “Aspects of extradition and deportation” (1993 — 4) SA Yearbook of International Law 163.
1[8] (1962) 3 All ER 641(CA) 659F—660B and Shearer, id, at 24—6 and the authorities there cited.
1[9] Id at 659I.
2[0] Id at 660D.
2[1] Id at 660G.
[2]2 1997 (4) SA 1 (CC); 1997 (6) BCLR 708 (CC).
2[3] Id at para 8.
2[4] Id at para
9.
2[5] Section 7(2) of the
Constitution provides as follows:
“The state must respect, protect, promote and fulfil the rights in the Bill of Rights.”
In terms of s 8(1) of the Constitution the Bill of Rights “binds the legislature, the executive, the judiciary and all organs of state.”
2[6] Above n 8.
2[7] 1995 (3) SA 391 (CC); 1995 (6) BCLR 665 (CC).
2[8] The question whether, in the
light of the decision in Makwanyane, an exception should be made to the
right to life to allow for the death sentence to be passed in serious cases, was
thoroughly debated
in the course of the deliberations of the Constitutional
Assembly, e.g. during the second reading debate on 7 May 1996. Among other
matters, the question of a qualification to the right to life to allow for the
death sentence was expressly raised and debated.
Ultimately a decision was
taken that this should not be done. Although unanimity could not be reached on
this particular question,
the Constitution was adopted by an overwhelming
majority of the members of the Constitutional
Assembly.
2[9] Section 1(a) of
the Constitution provides as follows:
“The Republic of South Africa is one, sovereign, democratic state founded on the following values:
(a) Human dignity, the achievement of equality and the advancement of human rights and freedoms.”
3[0] In 1993 the Security Council unanimously adopted the statute for the International Criminal tribunal for the former Yugoslavia (Resolution 827 (1993)). In paragraph 1 of the resolution it approved the report of the Secretary-General of 3 May 1993 in which he recommended in paragraph 112 that “[t]he International Tribunal should not be empowered to impose the death penalty”. That is reflected in Article 24 which provides that “[t]he penalty imposed by the Trial Chamber shall be limited to imprisonment”. See Morris and Scharf An Insider’s Guide to the International Criminal Tribunal for the Former Yugoslavia Vol 1 (Transnational Publishers Inc, New York, 1995) at 274 and especially fn 713. Even in the face of the terrible genocide in Rwanda where over 500 000 people were murdered, the Security Council was not prepared to compromise on the inclusion of the death penalty. The statute was adopted by the Security Council with one dissent (Rwanda) and one abstention (China). In terms of Article 23 the penalty which may be imposed by a trial chamber is limited to imprisonment. In its explanation of vote on Resolution 955, New Zealand stated:
“For over three decades the United Nations has been trying progressively to eliminate the death penalty. It would be entirely unacceptable — and a dreadful step backwards — to introduce it here.”
Morris and Scharf The International Criminal Tribunal for Rwanda Vol 1 (Transnational Publishers Inc, New York, 1998) at 71—2. During the Rome Diplomatic Conference which drafted and adopted the Statute for the International Criminal Court there was much long debate on capital punishment. In the end it was agreed to exclude it as a competent sentence. In all 139 states signed the ICC Statute and 31, including South Africa, have ratified or acceded to the treaty.
3[1] Cf Mackeson v Minister of Information, Immigration and Tourism and Another 1980 (1) SA 747 (ZR) at 753—7.
3[2] United States v Burns, 2001 SCC 7, as yet unreported.
[3]3 (1991) 6 CRR (2d) 193.
3[4] (1991) 6 CRR (2d) 252.
3[5] At paras 131—2.
3[6] At para 65.
3[7] Section 1 provides that “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”.
3[8] Section
11.
3[9] Factors that have to be
taken into account in terms of the section are:
(a) the nature of the right;
(b) the importance of the purpose of the limitation;
(c) the nature and extent of the limitation;
(d) the relation between the limitation and its purpose; and
(e) less restrictive means to achieve the purpose.
4[0] Above para 38.
4[1] Above n 27 at para 144.
4[2] [1996] 1 F.C 547.
4[3] Above n 18.
[4]4 Above n 34 at 203.
4[5] Albeit subject to possible limitation under s 36.
4[6] (1989) 11 EHRR
439.
4[7] Id at para 88.
4[8] Application no. 45276/99, 6 March 2001.
4[9] Id at para 59.
5[0] (1996) 23 EHRR 413.
5[1] Id at para 79—80.
5[2] Section 39(2).
5[3] Section 7(2).
5[4] “Torture” is
defined in Article 1(1) as including “any act by which severe pain or
suffering, whether physical
or mental, is intentionally inflicted on a person
for such purposes as . . . punishing him for an act he or a third person has
committed
or is suspected of having committed . . . ”, while providing
that “torture” does not include “pain or suffering
arising
only from, inherent in or incidental to lawful
sanctions”.
[5]5 As to
waiver generally, see South African Co-operative Citrus Exchange Ltd v
Director-General: Trade and Industry and Another 1997 (3) SA 236 (SCA) at
242G—H and 244D—E; Ritch and Bhyat v Union Government (Minister
of Justice) 1912 AD 719 at 734— 5; Reckitt and Colman (New
Zealand) Ltd v Taxation Board of Review and Another [1966] NZLR 1032 (CA) at
1042—3. In S v Shaba and Another 1998 (2) BCLR 220 (T) at
221H—I, the court held that the private law doctrine of waiver is not
applicable to inalienable fundamental
rights. An individual may choose not to
exercise a constitutionally protected right, but is always free to change his or
her mind
without penalty. De Waal et al The Bill of Rights Handbook 4 ed
(Juta, Cape Town, 2001) at 42—3, while suggesting t hat many
“freedom rights” may be waived, are of the view
that rights to human
dignity, life, and the right not to be discriminated against cannot be waived.
In a similar vein, the German
Federal Administrative Tribunal’s Peep
Show decision BVerwGe 64, 274 (1981) [English translation by Michalowski and
Woods German Constitutional Law – The Protection of Civil
Liberties (Ashgate/Dartmouth, Aldershot, 1999) at 105] states that
“[h]uman dignity is an objective, indisposable value, the respect
of which
the individual cannot waive validly.” In Basheshar Nath v The
Commissioner of Income-Tax, Delhi & Rajasthan & Another [1959] Supp
1 SCR 528, Das CJ of the Indian Supreme Court held that equality rights (Article
14) involve important public policy
considerations and can therefore not be
waived (at 550—3). In concurring opinions, Bhagwati (at 556—65) and
Subba Roa
JJ (at 606—22) stated that all fundamental constitutional
rights were instituted for public policy reasons. In Olga Tellis and Others
v Bombay Municipal Corporation [1986] 73 AIR 180 (SC) at paras 27—30,
the court held that litigants can never be estopped from claiming any
fundamental right.
See also Behram Khurshed Pesikaka v The State of
Bombay [1955] 1 SCR 613 at 653—4. Seervai Constitutional Law of
India – A Critical Commentary Vol 1, 4 ed (Universal Book Traders,
Delhi, 1999), paras 8.41—61, takes a narrower view. In his opinion, most
fundamental
rights, including equality, “are conferred primarily for the
benefit of individuals, and can, therefore, be waived”.
There are some,
like the prohibition of “untouchability” (Article 17), that have
important public policy ramifications
and cannot be waived. In R v Tran
[1995] 92 CCC (3d) 218 at 254, the Canadian Supreme Court held that “there
will be situations where [a s. 14 Charter] right simply
cannot, in the greater public interest, be waived”. In R
v Richard [1997] 110 CCC 3d 385 at 396, the court held that while certain
constitutional rights may in some circumstances be waived, “the
manner in
which such a waiver may be made, the extent to which such rights can be waived
and the effect of a waiver may vary with
the nature and scope of the right in
question”. The United States approach, by contrast, is to allow almost
any right, whether
or not constitutionally based, to be irretrievably waived by
an individual; see Peretz v US 501 US 923, 936 (1991): “The most
basic rights of criminal defendants are . . . subject to waiver”and US
v Mezzanatto 513 US 196, 203 (1995).
5[6] Hepner v Roodepoort-Maraisburg Town Council 1962 (4) SA 772 (A) at 778E—F; Laws v Rutherford 1924 AD 261 at 263. See also S v Gasa & Others 1998 (1) SACR 446 (D) at 448B and S v Pienaar 2000 (7) BCLR 800 (NC) at 805C. The Canadian Supreme Court, in the context of the right to trial by jury, stated in Korponey v Attorney-General of Canada [1982] 65 CCC (2d) 65 at 74 (affirmed by R v Lee [1990] 52 CCC (3d) 289 at 306—9), that any waiver “is dependent upon it being clear and unequivocal” and must be made “with full knowledge of the rights the procedure was enacted to protect and of the effect the waiver will have on those rights in the process” (emphasis in the original). See also Clarkson v The Queen [1986] 25 CCC (3d) 207 at 217—9, R v Evans [1991] 63 CCC (3d) 289 at 307, Mills v The Queen [1986] 26 CCC (3d) 481 at 544—6, and R v Morin [1992] 71 CCC (3d) 1 at 15.
5[7] In terms of s 35(2)(b) of the Constitution “[e]veryone who is detained . . . has the right . . . to choose, and to consult with, a legal practitioner, and to be informed of this right promptly”. The principle underlying this constitutional provision is, of course, recognised in open and democratic societies. In the present case it would suffice to refer to Miranda v Arizona 384 US 436 (1966) and Escobedo v Illinois 378 US 478 (1964).
5[8] 277 US 438, 485 (1928).
5[9] Indeed, Judge Sand specially authorised the expenditure of funds to enable Mohamed’s court-appointed defence team to pursue his interests in the South African courts, urging that such proceedings be concluded with all due expedition.
6[0] Section (1)(c) of the Constitution.
6[1] Under s 7(2) read with ss 38and 172(1)(a) of the Constitution.
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