Kaunda and Others v President of the Republic of South Africa (CCT 23/04) [2004] ZACC 5 (4 August 2004)

CHASKALSON CJ:

The applicants in this matter are 69 South African citizens presently held in Zimbabwe on a variety of charges.¹ The first six respondents are the President of the Republic of South Africa and various Cabinet Ministers who are cited as representatives of the South African government (the government). The National Director of Public Prosecutions is cited as the seventh respondent.

The applicants were arrested in Zimbabwe on 7 March 2004. On 9 March 2004, a group of 15 men were arrested in Malabo, the capital of Equatorial Guinea, and accused of being mercenaries and plotting a coup against the President of Equatorial Guinea. The majority of the detainees are South African nationals. The applicants fear that they may be extradited from Zimbabwe to Equatorial Guinea and put on trial with those who have been arrested there. They contend that if this happens they will not get a fair trial and, if convicted, that they stand the risk of being sentenced to death.

The applicants initially approached the High Court in Pretoria (the High Court) seeking orders aimed at compelling the government to make certain representations on their behalf to the governments of Zimbabwe and Equatorial Guinea, and to take steps to ensure that their rights to dignity, freedom and security of the person and fair conditions of detention and trial are at all times respected and protected in Zimbabwe and Equatorial Guinea.

The substantive relief claimed was in the following terms:

“2. Directing and ordering the Government of the Republic of South Africa (the Government) to take all reasonable and necessary steps as a matter of extreme urgency, to seek the release and/or extradition of the applicants from the Governments of Zimbabwe and/or Equatorial Guinea, as the case may be, to South Africa.

3. Declaring that the Government is, as a matter of law, entitled to request the release and/or extradition of the applicants from the Governments of Zimbabwe and/or Equatorial Guinea, as the case may be, to South Africa.

4. Directing and ordering the Government to seek an assurance as a matter of extreme urgency from the Zimbabwean Government that the applicants will not be released or extradited to Equatorial Guinea.

5. Directing and ordering the Government to seek assurance as a matter of extreme urgency from the Zimbabwean and Equatorial Guinean Governments, as the case may be, to not impose the death penalty on the applicants.

6. Directing and ordering the Government to ensure as far as is reasonably possible, that the dignity of the applicants as guaranteed in section 9 of the Constitution of South Africa (the Constitution) are at all times respected and protected in Zimbabwe or Equatorial Guinea, as the case may be.

7. Directing and ordering the Government to ensure as far as is reasonably possible, that the applicants’ right to freedom and security of person including the rights not to be subjected to torture, or cruel, inhuman or degrading treatment or punishment, as guaranteed in section 12 of the Constitution, are at all times respected and protected in Zimbabwe or Equatorial Guinea, as the case may be.

8. Directing and ordering the Government to ensure as far as is reasonably possible, that the rights of the applicants to fair detention and fair trial as guaranteed in section 35 of the Constitution are at all times respected and protected in Zimbabwe or Equatorial Guinea, as the case may be.

9. Directing and ordering the Government to, through the office of the second respondent, report in writing to the Registrar of this Honourable Court on a weekly basis as to the issues set out above where applicable.”

The application which was heard in the High Court by Ngoepe JP was dismissed. The Judge President delivered his judgment on 9 June 2004. On 21 June 2004 the applicants lodged an urgent application with the registrar of this Court for leave to appeal directly to it against the decision of the High Court. On 29 June the government lodged an affidavit opposing the application. This Court was then in recess and not due to convene again until 15 August. Because of the seriousness of the allegations made it was decided to convene the Court during the recess. On 30 June directions were given that the application for leave to appeal would be heard on 19 and 20 July 2004. The parties were put on terms to lodge their arguments expeditiously and to deal with the merits of the application to ensure that if leave to appeal was granted the matter could be disposed of without hearing further argument.

The Society for the Abolition of the Death Penalty in South Africa was admitted as an amicus curiae in the High Court proceedings and provided argument supporting the applicants’ application. It has sought leave to participate as an amicus in the application for leave to appeal. That was granted and we have had the benefit of written and oral argument from the amicus as well as the applicants and the government.

The application to the High Court

The proceedings against the government were commenced in the High Court over two months ago as a matter of urgency. The application was foreshadowed by a newspaper report published on 5 May 2004 saying that the applicants were expected to lodge an application in the High Court to force the government to step in. The report which is attached to the applicants’ founding affidavit is based largely on statements attributed to the applicants’ attorney and counsel in this matter. No demand was, however, made on the government at that time. Some twelve days later, on 17 May 2004, the government was given twenty four hours’ notice to comply with the demands made in a letter from the applicants’ attorney. The demands made were those which are now the claims referred to above. Their application to the High Court for this relief was lodged the following day with an affidavit of over 100 pages signed by the applicants’ attorney, to which were attached 34 annexures running to over 200 pages.

There is no justification for the peremptory manner in which the proceedings were commenced, nor satisfactory explanation for the failure to make the demand at the time the media was informed that court proceedings were to be launched. It must have been obvious to the applicants’ attorneys that the demands could not reasonably have been responded to within twenty four hours. Not surprisingly there was no response and the following day the application was lodged requiring the government to respond within a week. The answering affidavits draw attention to the short time within which the government has had to deal with the allegations made in the founding affidavit. They place most of the material allegations in issue but do so at times baldly, and without providing an account of all that they intend to do in the circumstances of the case. A consequence of the way that the papers have been drafted by the applicants and the respondents is that some of the issues that have been the subject of argument were not clearly formulated in the founding affidavit or the government’s answer. The picture which emerges from the record and on which the application must be decided is dealt with more fully when the various claims are addressed. The background is as follows.

The arrest of the applicants in Zimbabwe

The applicants say that they were employed to act as security guards in the Democratic Republic of the Congo (DRC) for a company which conducts mining operations there. Their services were required because mines in the DRC are subject to attacks by rebel armies and need protection. The rebel armies are equipped with modern weapons and the security guards need weapons suitable to enable them to resist such attacks. The applicants allege that a company known as Military Technical Services (MTS), which is a licensed arms dealer in South Africa, entered into an agreement earlier this year with a state owned company in Zimbabwe called Zimbabwe Defence Industries (ZDI) to supply the arms that would be required for this purpose.

On 7 March 2004 the applicants boarded a plane at Wonderboom Airport in South Africa from where they allege they were to commence their journey to the DRC to fulfil their contract to act as security guards. The plane took off and landed at the Polokwane International Airport where the applicants’ papers were cleared. The plane took off again and finally landed at Harare International Airport. According to the applicants, they were to refuel at Harare, pick up cargo there and then fly to Burundi, with their final destination being the DRC. They were arrested at Harare airport before the cargo had been loaded.

According to the charges they face in Harare the cargo was to consist of

“61 AK rifles – 150 offensive hand grenades

45 000 AK ammunition

20 PKM Light machine guns

30 000 PKM ammunition

100 RPG 7 anti tank launchers

2 X 60mm mortar tubes

5080 X 60mm mortar bombs

150 offensive hand grenades

20 icarus flairs

500 boxes 7.62 X 54mm ammunition

1 000 boxes 7.62 X 39mm ammunition

1 000 rounds RPG anti tank H.E ammunition

50 PRM machine guns.”

After the applicants had been arrested they were moved to Chikurubi Maximum Security Prison (Chikurubi Prison). They make serious allegations concerning the conditions in which they have been held since then and the difficulties they have had in instructing their attorneys and preparing for their trial in Zimbabwe. These allegations will be dealt with more fully later. For the moment it is sufficient to say that they face the following charges in Zimbabwe:

“Contravening section 13(1) of the Public Order and Security Act –

Count 1 – Conspiracy to possess dangerous weapons;

Count 2 – Attempt to possess dangerous weapons.

Contravening section 4(2)(b) of the Firearms Act –

Count 1 – Conspiracy to purchase firearms without a firearms certificate;

Contravening section 4(4)(a) of the Firearms Act –

Count 2 – Conspiracy to purchase ammunition without a firearms certificate.

Contravening section 36(1)(a)(i) and section 36(1)(c) or alternatively section 36(1)(e) of the Immigration Act – enter or assist any person to enter, remain or depart from Zimbabwe and making a false statement.

Contravening section 89(2)(b) of Statutory Instrument 79/88 of Aviation (air navigation) Regulations – make a false statement or declaration to an official of the Civil Aviation Authority of Zimbabwe.”

The applicants’ trial in Zimbabwe was due to commence on the first day of the hearing of this application. It was, however, postponed for two days to enable the counsel and attorneys who represent them in this application to appear on their behalf in Zimbabwe.

The allegations made by the applicants in the High Court proceedings

The founding affidavit on which the application is based was made by the applicants’ attorney, Mr Griebenow (Griebenow). He explains in great detail the difficulty he has experienced in consulting with the applicants in Chikurubi Prison and the practical difficulty he would have had in attempting to get them to make the affidavit. The government disputed various allegations made by Griebenow, but did not make an issue of the fact that there were no affidavits from the applicants confirming what he said. The High Court accepted Griebenow’s explanation for making the founding affidavit himself. I will therefore deal with the matter as if the applicants had confirmed the allegations made by Griebenow.

The applicants have nine separate claims that are set out in their notice of motion. These are claims of extraordinary breadth. I will deal with each of the claims in turn. But before doing so it is necessary to deal with two procedural issues raised during argument.

Is the application urgent and are the applicants entitled to appeal directly to this Court?

The procedural issues are related and can be dealt with together. They are whether the application for leave to appeal is sufficiently urgent to warrant the failure to comply with the normal rules of procedure and to entitle the applicants to bypass the Supreme Court of Appeal or the Full Bench of the High Court, and appeal directly to this Court.

This Court has held on various occasions that the granting of leave to appeal directly to it depends on various factors:

“Relevant factors to be considered in such cases will, on one hand, be the importance of the constitutional issues, the saving in time and costs that might result if a direct appeal is allowed, the urgency, if any, in having a final determination of the matters in issue and the prospects of success, and, on the other hand, the disadvantages to the management of the Court’s roll and to the ultimate decision of the case if the SCA is bypassed.”²

The applicants primarily aim to avoid being extradited to Equatorial Guinea and being tried in Zimbabwe or Equatorial Guinea. To that end their first claim is to require the South African government to take steps to have them extradited to South Africa so that any trial they may have to face can be conducted here. The other claims are directed to their conditions of detention, and to trial procedures should they be put on trial in Zimbabwe or Equatorial Guinea.

If the applicants are extradited to Equatorial Guinea or put on trial in Zimbabwe, the relief claimed by them seeking to prevent this will become academic. The claims relating to their conditions of detention are immediate and if they are entitled to the relief claimed, are pressing. It is desirable that finality be reached on these issues without delay.

The constitutional issues raise the question whether the Constitution binds the state to take steps to protect the applicants in relation to the complaints they have concerning their conditions of detention in Zimbabwe and the prosecution they face there, as well as the possibility of their being extradited to Equatorial Guinea to face charges which could result, if they were to be convicted, in their being sentenced to death. These issues involve the reach of the Constitution, and the relationship between the judiciary and the executive and the separation of powers between them. They are issues of great moment, and if their claims have substance, of great importance to the applicants.

The merits of the constitutional claim are relevant to the application for leave to appeal directly to this Court and the alleged urgency of the matter. The procedure followed by this Court in setting the application down for hearing and requiring the parties to deal with the merits enables the Court to consider the merits of the claim and, if so advised, to bring this dispute to finality. It also avoids a situation in which delays may result in the relief claimed becoming academic.

A theme that runs through all the claims is a demand that the government should seek assurances from foreign governments concerning prosecutions or contemplated prosecutions in those countries. The applicants assert that they have rights under the Constitution entitling them to make such demands, that the government has failed to comply with their demands and that in failing to do so it has breached their constitutional rights. The relief they claim is in effect a mandamus ordering the government to take action at a diplomatic level to ensure that the rights they claim to have under the South African Constitution are respected by the two foreign governments.

The issues raised by the applicants and the amicus curiae involve, on the one hand, the relationship at an international level between South Africa and foreign states, in this case Zimbabwe and Equatorial Guinea, and on the other, the nature and extent of its obligations to citizens beyond its borders. To answer the questions raised it is necessary to deal both with international law and domestic law. As the setting is international, I begin with international law.

International law

Section 232 of the Constitution provides that:

“Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of Parliament.”

Traditionally, international law has acknowledged that states have the right to protect their nationals beyond their borders but are under no obligation to do so. Counsel for the government, citing the Barcelona Traction case,³ relied on this principle to support the government’s contention that the applicants’ claims are misconceived. They referred to the following passages from the judgment of the International Court of Justice (ICJ) in that case:

“The Court would here observe that, within the limits prescribed by international law, a State may exercise diplomatic protection by whatever means and to whatever extent it thinks fit, for it is its own right that the State is asserting. Should the natural or legal persons on whose behalf it is acting consider that their rights are not adequately protected, they have no remedy in international law. All they can do is resort to municipal law, if means are available, with a view to furthering their cause or obtaining redress . . .

The State must be viewed as the sole judge to decide whether its protection will be granted, to what extent it is granted, and when it will cease. It retains in this respect a discretionary power the exercise of which may be determined by considerations of a political or other nature, unrelated to the particular case. Since the claim of the State is not identical with that of the individual or corporate person whose cause is espoused, the State enjoys complete freedom of action. Whatever the reasons for any change of attitude, the fact cannot in itself constitute a justification for the exercise of diplomatic protection by another government, unless there is some independent and otherwise valid ground for that.”⁴

Their argument comes down to this. The applicants’ remedy is to approach the government for assistance and not the courts. If this is done the government will consider their requests. It is, however, the sole judge of what should be done in any given case and when and in what manner assistance that is given should be provided.

The nature and scope of diplomatic protection has been the subject of investigations by the International Law Commission. It was requested in 1996 by the General Assembly of the United Nations to undertake this task. Special Rapporteurs and working groups were involved in the investigations the outcome of which is referred to in reports of the International Law Commission. The report dealing with issues relevant to the present matter is the report published in 2000 (the ILC report). This report contains summaries by the Special Rapporteur, Professor Dugard, of the relevant debates.⁵

The term diplomatic protection is not a precise term of art. It is defined in the Special Rapporteur’s report as

“action taken by a State against another State in respect of an injury to the person or property of a national caused by an internationally wrongful act or omission attributable to the latter State.”⁶

It is also used by some commentators to refer to

“preventing some threatened injury in violation of international law, or of obtaining redress for such injuries after they have been sustained.”⁷

It appears from the ILC report, however, that there are differences on this and that some commentators take the view that diplomatic protection applies only to actions taken to secure redress for injuries actually caused.⁸

According to the Special Rapporteur’s report, diplomatic protection includes, in a broad sense, “consular action, negotiation, mediation, judicial and arbitral proceedings, reprisals, retorsion, severance of diplomatic relations, [and] economic pressures”.⁹ Some authorities distinguish between diplomatic action taken by a state to secure redress for an injury to a national, and judicial proceedings taken to that end. The distinction is not relevant for the purposes of this case.

It had been suggested that the traditional approach to diplomatic protection, such as that set out in the Barcelona Traction case,¹⁰ should be developed to recognise that in certain circumstances where injury is the result of a grave breach of a jus cogens norm, the state whose national has been injured, should have a legal duty to exercise diplomatic protection on behalf of the injured person. As a corollary to that, states would be obliged to make provision in their municipal law for the enforcement of this right before a competent court or other independent national authority.

It appears from the ILC report that although there was some support for this development, and some recent national constitutions made provision for such an obligation, presently this is not the general practice of states. Currently the prevailing view is that diplomatic protection is not recognised by international law as a human right and cannot be enforced as such. To do so may give rise to more problems than it would solve. Diplomatic protection remains the prerogative of the state to be exercised at its discretion. It must be accepted, therefore, that the applicants cannot base their claims on customary international law. No contention to the contrary was addressed to us in argument.

South African law

Against this background of international law and practice I turn to consider the question whether according to our municipal law the applicants have a right to diplomatic protection from the state, and can require it to come to their assistance in Zimbabwe or Equatorial Guinea if they are extradited to that country.

Counsel for the applicants contended that the applicants’ rights to dignity, life, freedom and security of the person, including the right not to be treated or punished in a cruel, inhuman or degrading way, and also the right to a fair trial entrenched in sections 10, 11, 12 and 35 of the Constitution, are being infringed in Zimbabwe and are likely to be infringed if they are extradited to Equatorial Guinea. Relying on section 7(2) of the Constitution, which requires the state to “respect, protect, promote and fulfil the rights in the Bill of Rights”, he contended that the state is obliged to protect these rights of the applicants, and the only way it can do so in the circumstances of this case is to provide them with diplomatic protection. Counsel for the amicus adopted a similar but more nuanced approach directing himself to the issue of capital punishment and the state’s duties to its citizens if that risk arises in a foreign country.

The argument based on section 7(2) is built on the proposition that the state has a positive obligation to comply with its provisions.^¹¹ I accept that this is so. But that does not mean that the rights nationals have under our Constitution attach to them when they are outside of South Africa,¹² or that the state has an obligation under section 7(2) to “respect, protect, promote, and fulfil” the rights in the Bill of Rights which extends beyond its borders. Those are different issues which depend, in the first instance, on whether the Constitution can be construed as having extraterritorial effect.

Section 233 of the Constitution provides:

“When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation that is consistent with international law over any alternative interpretation that is inconsistent with international law.”

This must apply equally to the provisions of the Bill of Rights and the Constitution as a whole. Consistently with this, section 39(1)(b) of the Constitution requires courts, when interpreting the Bill of Rights, to consider international law.

A right to diplomatic protection is not referred to in the Universal Declaration of Human Rights, nor is it a right contained in any international agreement of which I am aware, including the international human rights’ treaties to which South Africa is a party, such as the African Charter on Human and Peoples’ Rights¹³ or the International Covenant on Civil and Political Rights.¹⁴ Our Constitution shows respect for international law, and although it includes rights which go beyond those recognised by international law and major human rights instruments, when it does so, it spells out the rights expressly.

As Ackermann J pointed out in Bernstein and Others v Bester and Others NNO,¹⁵ “[t]he internal evidence of the Constitution itself suggests that the drafters were well informed regarding provisions in international, regional and domestic human and fundamental rights”.¹⁶ The Bill of Rights is extensive and covers conventional and less conventional rights in detail. A right to diplomatic protection is a most unusual right, which one would expect to be spelt out expressly rather than being left to implication.¹⁷

Extraterritoriality: the constitutional text

The starting point of the enquiry into extraterritoriality is to determine the ambit of the rights that are the subject matter of section 7(2). To begin with two observations are called for. First, the Constitution provides the framework for the governance of South Africa. In that respect it is territorially bound and has no application beyond our borders. Secondly, the rights in the Bill of Rights on which reliance is placed for this part of the argument are rights that vest in everyone. Foreigners are entitled to require the South African state to respect, protect and promote their rights to life and dignity and not to be treated or punished in a cruel, inhuman or degrading way while they are in South Africa. Clearly, they lose the benefit of that protection when they move beyond our borders. Does section 7(2) contemplate that the state’s obligation to South Africans under that section is more extensive than its obligation to foreigners, and attaches to them when they are in foreign countries?

Section 7(1) refers to the Bill of Rights as the

“cornerstone of democracy in South Africa. It enshrines the rights of all people in our country and affirms the democratic values of human dignity, equality and freedom.”

The bearers of the rights are people in South Africa. Nothing suggests that it is to have general application, beyond our borders.

Extraterritoriality: international law

It is a general rule of international law that the laws of a state ordinarily apply only within its own territory.¹⁸ It is recognised, however, that a state is also entitled, in certain circumstances, to make laws binding on nationals wherever they may be. This can give rise to a tension if laws binding on nationals conflict with laws of a foreign sovereign state in which the national is. As Dugard points out,¹⁹ sovereignty empowers a state to exercise the functions of a state within a particular territory to the exclusion of all other states.²⁰ In most instances, the exercise of jurisdiction beyond a state’s territorial limits would under international law constitute an interference with the exclusive territorial jurisdiction of another state. In The Case of the S.S. Lotus,²¹ the Permanent Court of International Justice described this principle as follows:

“Now the first and foremost restriction imposed by international law upon a State is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised by a State outside its territory except by virtue of a permissive rule derived from international custom or from a convention . . . all that can be required of a State is that it should not overstep the limits which international law places upon its jurisdiction; within these limits, its title to exercise jurisdiction rests in its sovereignty.”²²

As Brownlie²³ and Shaw²⁴ point out, the passage of which this forms a part has been criticised by a substantial number of authorities. The criticism emanates from a reading of the passage which appears to regard states as possessing very wide powers of jurisdiction which could only be restricted by proof of a rule of international law prohibiting the action concerned. As Shaw notes, however, two later judgments of the ICJ indicate that “the emphasis lies the other way around.”²⁵

It is not necessary to enter this controversy. What seems to be clear is that when the application of a national law would infringe the sovereignty of another state, that would ordinarily be inconsistent with and not sanctioned by international law.

In the case of R v Cook,²⁶ the majority of the Supreme Court of Canada endorsed this understanding of the international law position holding that “the principle of the sovereign equality of states generally prohibits extraterritorial application of domestic law”.²⁷ In dealing with the application of the Charter beyond the borders of Canada, they said

“on the jurisdictional basis of nationality, the Charter applies to the actions of Canadian law enforcement authorities on foreign territory (which satisfies s. 32(1)), provided that the application of Charter standards would not interfere with the sovereign authority of the foreign state.”²⁸

I agree with this approach which, on issues relevant to the application of the Bill of Rights to foreign states and their functionaries, does not seem to me to be inconsistent with the views of the other judges in that case. L’Heureux-Dube and McLachlin JJ expressed themselves as follows:

“[F]or the protection of the Charter to apply, the action alleged to have violated the claimant’s Charter rights must have been carried out by one of the governmental actors enumerated in s. 32. Under no circumstances can the actions of officials of another jurisdiction, acting outside Canada, be considered to violate the Charter. Officials of other jurisdictions will not be considered agents of Canadian authorities. This emerges from the need to respect the sovereignty and laws of countries where Canadian officials work, by not expecting foreign officials to comply with Canadian law or modify their procedures to respect Canadian law.”²⁹

Bastarache and Gonthier JJ said:

“By its terms, s. 32(1) dictates that the Charter applies to the Canadian police by virtue of their identity as part of the Canadian government. By those same terms, however, the Charter may not be applied to a person who is neither within the authority of the various Canadian legislatures, nor a Canadian official.”³⁰

There may be special circumstances where the laws of a state are applicable to nationals beyond the state’s borders, but only if the application of the law does not interfere with the sovereignty of other states.³¹ For South Africa to assume an obligation that entitles its nationals to demand, and obliges it to take action to ensure, that laws and conduct of a foreign state and its officials meet not only the requirements of the foreign state’s own laws, but also the rights that our nationals have under our Constitution, would be inconsistent with the principle of state sovereignty. Section 7(2) should not be construed as imposing a positive obligation on government to do this.

During argument hypothetical questions were raised relating to South African officials abroad, to South African companies doing business beyond our borders, to the government itself engaging in commercial ventures through state owned companies with bases in foreign countries, and to what the state’s obligations might be in such circumstances. There is a difference between an extraterritorial infringement of a constitutional right by an organ of state bound under section 8(1) of the Constitution, or by persons bound under section 8(2) of the Constitution, in circumstances which do not infringe the sovereignty of a foreign state, and an obligation on our government to take action in a foreign state that interferes directly or indirectly with the sovereignty of that state. Claims that fall in the former category raise problems with which it is not necessary to deal now.³² They may, however, be justiciable in our courts, and nothing in this judgment should be construed as excluding that possibility.

The decision in Mohamed and Another v President of the Republic of South Africa and Others

The applicants contend that because the state provided intelligence to Zimbabwe and Equatorial Guinea which was the cause of their being arrested in Zimbabwe, where they face the possibility of being extradited to Equatorial Guinea, the state has a particular duty to protect them in the situation in which they now find themselves. In support of this submission they placed considerable reliance on the decision of this Court in Mohamed and Another v President of the Republic of South Africa and Others.³³

Mohamed’s case dealt with an entirely different situation to that which exists in the present case. In that case certain state functionaries had colluded with the FBI to secure the removal of Mohamed from South Africa to the USA. In doing so they had acted illegally and in breach of Mohamed’s rights under the Constitution. The Court held that 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.”³⁴

It was this that led this Court to say:

“It would not necessarily be futile for this Court to pronounce on the illegality of the governmental conduct in issue in this case”³⁵

and that it would not

“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.”³⁶

On the facts of the case, however, and despite the fact that it made a declaration that the government had acted unlawfully in handing Mohamed over to the FBI, it declined to make an order requiring the government to take positive action to ameliorate the prejudice resulting from the unlawful act.

O’Regan J refers to the fact that Mohamed was in the USA at the time. But the relevant events in that case all took place in South Africa. His rights were infringed in South Africa by government officials and not in the USA where he found himself as a result of their having violated his rights. This Court therefore had no difficulty in finding that his constitutional rights had been breached. The state argued that Mohamed had consented to being taken to the USA and had accordingly waived his rights under the Bill of Rights. That was denied by Mohamed. In dealing with the question of waiver this Court held:

“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.”³⁷

It then examined the evidence and concluded:

“[I]t has not been established that any agreement which Mohamed might have expressed to his being delivered to the United States constitutes 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.”³⁸

The facts of the present case are entirely different. The applicants were not removed from South Africa by the government, or with the government’s assistance. They left South Africa voluntarily and now find themselves in difficulty in Zimbabwe and at risk of being extradited to Equatorial Guinea. Their arrest in Zimbabwe, the criminal charges brought against them there, and the possibility of their being extradited from Zimbabwe to Equatorial Guinea are not the result of any unlawful conduct on the part of the government or of the breach of any duty it owed to them.

Police who receive information that a bank robbery is being planned do not commit a wrong by failing to advise the would be robbers of the information that they have, nor do they act illegally by lying in wait at the site of the proposed robbery in order to apprehend the robbers when they arrive at the scene. For a court to hold otherwise would undermine legitimate methods of policing and law enforcement.

The applicants characterise what happened as a trap. But this too is wrong. There is nothing to suggest that the South African authorities encouraged the applicants in any way to embark upon the venture in which they were engaged or induced them to do so. At best for the applicants the South African authorities failed to warn them of the intelligence that they had received or of the fact that it would be passed on to Zimbabwe and Equatorial Guinea. But that was not a breach of any duty owed by the South African government to the applicants. On the contrary, a failure to pass on the intelligence to the authorities in Zimbabwe and Equatorial Guinea would have been a breach of the duties that South Africa owed to those countries.³⁹

Even if the intelligence passed on by South Africa to Zimbabwe and Equatorial Guinea led to the arrests in Zimbabwe, the passing on of the intelligence was not a wrongful act. In the times in which we live it is essential that this be done, and comity between nations would be harmed by a failure to do so. No wrong has been done to the applicants by the South African government that has to be remedied, nor is there a consequence of unlawful conduct that has to be ameliorated.

The Bill of Rights binds the South African government, but does not bind other governments. As the Canadian Supreme Court has said with regard to the application of its own constitution in respect of appeals by Canadian nationals to be protected against the application of inconsistent foreign law,

“individuals who choose to leave Canada leave behind Canadian law and procedures and must generally accept the local law, procedure and punishments which the foreign state applies to its own residents.”⁴⁰

There too, a distinction is drawn between extradition proceedings in Canada, which are subject to constitutional scrutiny, and the non-retention of constitutional rights if extradition takes place, or if the national is out of the country.⁴¹ The same rule is applicable in the United States.⁴²

Subject to an important qualification that I raise later in this judgment concerning law, procedure and punishment inconsistent with international human rights norms, I would adopt that principle for the purpose of South African law.

In the present case the actors responsible for the action against which the applicants demand protection from the South African government are all actors in the employ of sovereign states over whom our government has no control. The laws to which objection is taken are the laws of foreign states who are entitled to demand that they be respected by everyone within their territorial jurisdiction, and also by other states. The applicants have no right to demand that the government take action to prevent those laws being applied to them. Mohamed’s case is not authority for the contrary submission advanced by the applicants.

Section 3 of the Constitution

This does not mean that our Constitution is silent on this issue. Section 3 of the Constitution provides:

“(1) There is a common South African citizenship.

(2) All citizens are —

(a) equally entitled to the rights, privileges and benefits of citizenship; and

(b) equally subject to the duties and responsibilities of citizenship.

(3) National legislation must provide for the acquisition, loss and restoration of citizenship.”

The relevance of these provisions to diplomatic protection is discussed by Erasmus and Davidson in an article in the South African Yearbook of International Law.⁴³ Although I take a somewhat different view as to the content to be given to the benefits and privileges of citizens guaranteed by section 3, I agree with much of what they say, and to a large extent with the conclusions that they reach.

As a nation we have committed ourselves to uphold and protect fundamental rights which are the cornerstone of our democracy. We recognise a common citizenship and that all citizens are equally entitled to the rights, privileges and benefits of citizenship. Whilst I have held that there is no enforceable right to diplomatic protection, South African citizens are entitled to request South Africa for protection under international law against wrongful acts of a foreign state.

They are not in a position to invoke international law themselves and are obliged to seek protection through the state of which they are nationals. Whilst the state is entitled but not obliged under international law to take such action, it invariably acts only if requested by the national to do so.⁴⁴

South African citizenship requirements⁴⁵ are such that citizens invariably, if not always, will be nationals of South Africa. They are entitled, as such, to request the protection of South Africa in a foreign country in case of need.

Nationality is an incident of their citizenship which entitles them to the privilege or benefit of making such a request. Should there ever be an exceptional case where the citizen’s connection with South Africa is too remote to justify a claim of nationality, it would be a legitimate response to such a request to say that South Africa is not entitled to demand diplomatic protection for that person.⁴⁶ But apart from that, the citizen is entitled to have the request considered and responded to appropriately.

When the request is directed to a material infringement of a human right that forms part of customary international law, one would not expect our government to be passive. Whatever theoretical disputes may still exist about the basis for diplomatic protection, it cannot be doubted that in substance the true beneficiary of the right that is asserted is the individual.⁴⁷

The founding values of our Constitution include human dignity, equality and the advancement of human rights and freedoms. Equality is reflected in the principle of equal citizenship demanded by section 3.

The advancement of human rights and freedoms is central to the Constitution itself. It is a thread that runs throughout the Constitution and informs the manner in which government is required to exercise its powers. To this extent, the provisions of section 7(2) are relevant, not as giving our Constitution extraterritorial effect, but as showing that our Constitution contemplates that government will act positively to protect its citizens against human rights abuses.

The entitlement to request diplomatic protection which is part of the constitutional guarantee given by section 3 has certain consequences. If, as I have held, citizens have a right to request government to provide them with diplomatic protection, then government must have a corresponding obligation to consider the request and deal with it consistently with the Constitution.⁴⁸ I mention later that there may even be a duty in extreme cases for the government to act on its own initiative.⁴⁹ This, however, is a terrain in which courts must exercise discretion and recognise that government is better placed than they are to deal with such matters.

According to the government’s answering affidavit its policy in regard to such matters was correctly stated by Deputy Minister of Foreign Affairs Mr Aziz Pahad in an interview with the media, a transcript of which was annexed by the applicants to their founding affidavit. The transcript is in the following terms:

“[A]s their government, we have to ensure that all South African citizens, whatever offence they have carried out or are charged with, must receive a fair trial, they must have access to their lawyers, they must be tried within the framework of the Geneva Convention, they must be held in prison within the framework of the Geneva Convention and International law and we will always, it is our constitutional duty to ensure that this is getting out within the framework of the Geneva Convention and that there is a fair trial.”

There may thus be a duty on government, consistent with its obligations under international law, to take action to protect one of its citizens against a gross abuse of international human rights norms. A request to the government for assistance in such circumstances where the evidence is clear would be difficult, and in extreme cases possibly impossible to refuse. It is unlikely that such a request would ever be refused by government, but if it were, the decision would be justiciable, and a court could order the government to take appropriate action.

There may even be a duty on government in extreme cases to provide assistance to its nationals against egregious breaches of international human rights which come to its knowledge. The victims of such breaches may not be in a position to ask for assistance, and in such circumstances, on becoming aware of the breaches, the government may well be obliged to take an initiative itself.

The difficulty of dealing with legal claims for diplomatic protection is exemplified by the approach of courts confronted with such claims. The Special Rapporteur draws attention to cases in British, Dutch, Spanish, Austrian, Belgian, and French courts in which claims by individuals against their governments for diplomatic protection were dismissed.⁵⁰ He refers to these cases as demonstrating an expectation that courts should come to the assistance of nationals injured by foreign states. The fact that the claims were dismissed shows, however, how difficult it is to do so.

Even in those countries where the constitution recognises that the state has an obligation to afford such protection, the ILC report suggests that there is some doubt as to whether that obligation is justiciable under municipal law.⁵¹

A court cannot tell the government how to make diplomatic interventions for the protection of its nationals. Germany, which has a long tradition of recognising a state obligation to provide diplomatic assistance to nationals injured by foreign states recognises this, and leaves much to the discretion of the government.⁵²

Although the exercise of the discretion can be tested for compliance with the constitution,

“[t]he scope of discretion in the foreign policy sphere is based on the fact that the shape of foreign relations and the course of their development are not determined solely by the wishes of the Federal Republic of Germany and are much more dependent upon circumstances beyond its control. In order to enable current political objectives of the Federal Republic of Germany to be achieved within the framework of what is permissible under international and constitutional law, the Federal Basic Law grants the organs of foreign affairs wide room for manoeuvre in the assessment of foreign policy issues as well as the consideration of the necessity for possible courses of action.”⁵³

The Court of Appeal in England recently had occasion to consider in the Abbasi case whether claims for diplomatic protection are justiciable.⁵⁴ After a careful review of the relevant authorities it came to the conclusion that although there is no enforceable duty under English law to protect citizens injured by breaches of their fundamental rights, the discretion that the Foreign Office has to provide such protection is not beyond a court’s powers of review if it can be shown that the decision was irrational or contrary to legitimate expectation. According to this judgment:

“It is highly likely that any decision of the Foreign and Commonwealth Office, as to whether to make representations on a diplomatic level, will be intimately connected with decisions relating to this country’s foreign policy, but an obligation to consider the position of a particular British citizen and consider the extent to which some action might be taken on his behalf, would seem unlikely itself to impinge on any forbidden area.

The extent to which it may be possible to require more than that the Foreign Secretary give due consideration to a request for assistance will depend on the facts of the particular case.”⁵⁵

We were not referred to decisions of other national courts which suggest a higher intensity of review than that evinced by the German and English decisions. None are referred to by the Special Rapporteur, and I am not aware of any other decisions that may be relevant to evaluating international practice.

A decision as to whether, and if so, what protection should be given, is an aspect of foreign policy which is essentially the function of the executive. The timing of representations if they are to be made, the language in which they should be couched, and the sanctions (if any) which should follow if such representations are rejected are matters with which courts are ill equipped to deal. The best way to secure relief for the national in whose interest the action is taken may be to engage in delicate and sensitive negotiations in which diplomats are better placed to make decisions than judges, and which could be harmed by court proceedings and the attendant publicity.

This does not mean that South African courts have no jurisdiction to deal with issues concerned with diplomatic protection. The exercise of all public power is subject to constitutional control. Thus even decisions by the President to grant a pardon⁵⁶ or to appoint a commission of inquiry⁵⁷ are justiciable. This also applies to an allegation that government has failed to respond appropriately to a request for diplomatic protection.

For instance if the decision were to be irrational, a court could intervene. This does not mean that courts would substitute their opinion for that of the government or order the government to provide a particular form of diplomatic protection.

“Rationality . . . is a minimum threshold requirement applicable to the exercise of all public power by members of the Executive and other functionaries. Action that fails to pass this threshold is inconsistent with the requirements of our Constitution and therefore unlawful. The setting of this standard does not mean that the courts can or should substitute their opinions as to what is appropriate for the opinions of those in whom the power has been vested. As long as the purpose sought to be achieved by the exercise of public power is within the authority of the functionary, and as long as the functionary’s decision, viewed objectively, is rational, a court cannot interfere with the decision simply because it disagrees with it or considers that the power was exercised inappropriately.”⁵⁸

If government refuses to consider a legitimate request, or deals with it in bad faith or irrationally, a court could require government to deal with the matter properly. Rationality and bad faith are illustrations of grounds on which a court may be persuaded to review a decision. There may possibly be other grounds as well and these illustrations should not be understood as a closed list.

What needs to be stressed, however, in the light of some of the submissions made to us in this case, is that government has a broad discretion in such matters which must be respected by our courts. With this in mind, I proceed now to deal with the specific claims made by the applicants. I will deal with each of the claims in turn, though not in the same order as they appear in the notice of motion.

The claim to be extradited from Zimbabwe to South Africa

The relief claimed by the applicants in this regard is as follows:

“Directing and ordering the government . . . to take all reasonable and necessary steps as a matter of extreme urgency, to seek the release and/or extradition of the applicants from the governments of Zimbabwe and/or Equatorial Guinea, as the case may be, to South Africa.”

In terms of the Constitution the prosecuting authority, headed by the National Director of Public Prosecutions, has the power to institute criminal proceedings on behalf of the state and to carry out any necessary functions incidental to the instituting of criminal proceedings.⁵⁹ This would include applying for extradition where this is necessary. The powers of the prosecuting authority, for which the Minister of Justice and Constitutional Affairs assumes final responsibility,⁶⁰ must be exercised by the prosecuting authority without fear, favour, or prejudice.⁶¹ Decisions to institute prosecutions may raise policy issues which are far from easy to determine where, as in the present case, the events are already the subject matter of criminal proceedings in another country.

In terms of the Promotion of Administrative Justice Act⁶² a decision to institute a prosecution is not subject to review.⁶³ The Act does not, however, deal specifically with a decision not to prosecute. I am prepared to assume in favour of the applicants that different considerations apply to such decisions, and that there may possibly be circumstances in which a decision not to prosecute could be reviewed by a court.⁶⁴ But even if this assumption is made in favour of the applicants, they have failed to establish that this is a case in which such a power should be exercised.

It is not disputed that the prosecuting authority in South Africa opened an investigation into the possibility of charging the applicants under the Regulation of Foreign Military Assistance Act⁶⁵ with being party to a planned coup in Equatorial Guinea. Section 3(b) of this Act makes it an offence to

“render any foreign military assistance to any state or organ of state, group of persons or other entity or person unless such assistance is rendered in accordance with an agreement approved in section 5.”

Foreign military assistance includes

“any action aimed at overthrowing a government or undermining the constitutional order, sovereignty or territorial integrity of a state”.⁶⁶

It is not suggested that the applicants had approval under section 5 to provide “foreign military assistance”.

If there is substance in the suggestion that a coup was being planned, there would be a basis for the South African government to put the applicants on trial here and to apply for their extradition for that purpose. To do so, however, they would have to meet the requirements of the Zimbabwean law regulating extradition from that country to South Africa. The relevant law is the Revised Edition of the Extradition Act of 1996 (the Zimbabwe Extradition Act). South Africa is a designated country in terms of that Act.

Section 16 of the Zimbabwe Extradition Act requires requests for extradition by a designated country to be accompanied by a warrant of arrest giving particulars of the offence in respect of which the extradition is sought and such evidence as would establish a prima facie case in a court of law in Zimbabwe that the person concerned has committed the offence concerned in the designated country.⁶⁷

Mr J P Pretorius (Pretorius), the Deputy Director of Public Prosecutions in the Priority Crimes Litigation Unit of the prosecuting authority is in charge of the investigations against the applicants. An affidavit by him forms part of the record in the High Court proceedings. It says:

“At present there is not sufficient evidence to make a decision whether to institute a prosecution against the persons concerned in connection with this matter. This situation may change in the near future.”

Griebenow says that he was told on 17 May by Pretorius that he would be drawing up an indictment that evening. Pretorius denies this and says that he told Griebenow that he would start working on the indictment on the 17^th. He goes on to say that the docket is not complete and further investigations are necessary. The allegation by Pretorius that there was insufficient evidence to make a decision about a prosecution is not denied. Counsel for the applicants conceded that he could not dispute this allegation. He suggested that a charge could be framed on the basis of the applicants’ own evidence that they were going to the DRC to provide security services. This he says is covered by the definition of foreign military assistance which includes:

“[S]ecurity services for the protection of individuals involved in armed conflict or their property”.⁶⁸

But even if this be so, there is a vast difference between defending a mine owner against unlawful assaults on its property, and planning a coup against the head of a state with which South Africa enjoys diplomatic relations. South Africa and Equatorial Guinea have also entered into a joint security agreement entitled “Agreement between the Government of the Republic of South Africa and the Government of the Republic of Equatorial Guinea Concerning Cooperation on Defence and Security”. Article 3 of the Agreement provides the functions of the South Africa–Equatorial Guinea Joint Commission on Defence and Security. These include: promoting cooperation at all levels in the fields of defence and security; exchanging security information on the activities and movement of elements threatening the security and stability of the two countries; establishing effective channels of communication between the defence and security forces of the two countries; dealing with matters of cross-border crimes and illegal immigration; briefing members on the security situation prevailing in each country generally and exchanging ideas and acting jointly on how the attendant problems may be addressed; and dealing with any other matters which in the opinion of the parties will enhance better mutual understanding and strengthen relations of solidarity between the two countries.

An application for extradition must provide particulars of the offence and prima facie evidence to support the charge. If the prosecuting authority’s investigations are directed to the possibility of putting the applicants on trial for planning a coup in Equatorial Guinea it must have evidence to support that allegation. Secondly, the offence for which the extradition is sought must be an offence for which the accused person could have been charged and prosecuted in Zimbabwe if the offence had been committed there.⁶⁹ Neither of these propositions has been established by the applicants. Zimbabwe does not have legislation comparable to the Regulation of Foreign Military Assistance Act.

The applicants seek to overcome this difficulty by saying that they will consent to being extradited to South Africa should such an application be made. But that is no answer. If the government lacks evidence to establish a prima facie case against the applicants it is not entitled to put them on trial. Nor would a Zimbabwean court be entitled to order that they be extradited to South Africa rather than Equatorial Guinea. An extradition by consent in such circumstances would be no more than a device to remove the applicants from Zimbabwe and bring them back to South Africa, where they would then have to be put on trial for a lesser offence than participating in plans for a coup, or be released because of the lack of evidence of their having committed any crime. To pursue a request for extradition in such circumstances would be contrary to South African law and Zimbabwean law and inconsistent with the government’s duty to conduct its foreign relations in good faith.

The government says that the prosecuting authority’s investigations have not been completed and there is not yet sufficient evidence to take a decision to institute a prosecution. This is not denied by the applicants, who themselves deny that they were party to plans to stage a coup. That being so, it must be accepted that when these proceedings were initiated the government lacked the evidence necessary to apply for the extradition of the applicants. On that ground alone the first claim must fail. Counsel for the applicants was constrained to concede that this was so and did not persist in the claim.

In the circumstances it is not necessary to deal with the question whether, if there were a legitimate basis for seeking the extradition of the applicants, this Court would have had the power in the circumstances of this case to order the government to do so.

The claim that steps be taken to secure the release of the applicants from custody in Zimbabwe

There is no evidence to suggest that the charges that the applicants face in Zimbabwe are not offences according to Zimbabwean law, or that there is no evidence to justify the bringing of such charges against them. That being so, there is no basis on which South Africa would be entitled to exert diplomatic pressure on Zimbabwe for them to be released, let alone for a court to order that this be done.

The risk of capital punishment

The claim is formulated as follows:

“Directing and ordering the Government to seek assurance as a matter of extreme urgency from the Zimbabwean and Equatorial Guinean Governments not to impose the death penalty on the applicants.”

There is nothing to suggest that the applicants are at risk of being charged with an offence in Zimbabwe for which capital punishment would be a competent sentence. That possibility need not, therefore, be considered. There is, however, evidence to suggest that the applicants may possibly be charged with capital offences in Equatorial Guinea.

There can be no doubt that capital punishment is inconsistent with the provisions of our Bill of Rights.⁷⁰ But the question whether South African citizens can require our government to take action to protect them against conduct in a foreign country, which would be lawful there, but would infringe their rights if committed in South Africa, raises entirely different issues. Although the abolitionist movement is growing stronger at an international level,⁷¹ capital punishment is not prohibited by the African Charter on Human and Peoples’ Rights or the International Covenant on Civil and Political Rights, and is still not impermissible under international law. The execution of the sentence, if imposed, would be by the state of Equatorial Guinea, which means that attempts to mitigate the sentence would necessarily engage the foreign relations between the two countries.

The government’s policy on this issue is that it makes representations concerning the imposition of such punishment only if and when such punishment is imposed on a South African citizen. The government’s answering affidavit goes on to say:

“It is a concern of the South African government that there are South Africans who are indicted or incarcerated in foreign countries where the death sentence is a competent sentence. It is a continuing effort where appropriate to make representations regarding the death sentence as a form of punishment.”

The applicants are entitled to the benefit of this policy, and if capital punishment were to be imposed on them, then consistently with its policy, government would have to make representations on their behalf. There is no evidence to suggest that this would not happen.

Counsel for the amicus curiae submitted that it is cruel treatment to put a person on trial in a foreign country to face a possible death sentence if convicted. However, as long as the proceedings and prescribed punishments are consistent with international law, South Africans who commit offences in foreign countries are liable to be dealt with in accordance with the laws of those countries, and not the requirements of our Constitution, and are subject to the penalties prescribed by such laws.⁷²

The question whether representations should be made now or later is a matter of judgment and a question of timing. There may in fact prove to be no need for representations to be made at all. The applicants may not be convicted, or if convicted, may not be sentenced to death. Counsel for the applicants submitted that if a death sentence were to result, there might be insufficient time between sentence and execution for representations to be made. There is, however, nothing to show that if the applicants were to be convicted and sentenced to death in Equatorial Guinea, there would not be sufficient time to make effective representations.

Bearing in mind the deference to which the government is entitled in such matters it cannot be said that its response to the applicants’ demand that it make the representations now, is inconsistent with the Constitution. The claim that the government be directed as a matter of extreme urgency to seek an assurance that the death penalty will not be imposed must therefore be dismissed.

Extradition to Equatorial Guinea

According to Griebenow, Equatorial Guinea has made a request to Zimbabwe for the extradition of the applicants. He bases this averment on submissions made to the court in Zimbabwe by a representative of the Attorney-General in opposing an application by the applicants to be released from custody. He also refers to the fact that the applicants’ legal representatives in Zimbabwe were told by the Attorney-General’s representative in Zimbabwe that a request for extradition had been made by Equatorial Guinea, and were shown pages from a document from the Zimbabwean Ministry of Foreign Affairs directed to the Attorney-General of Zimbabwe in which it is recommended that the application for extradition be considered favourably. Reference is also made to the fact that several people, including a number of South African citizens, have already been arrested in Equatorial Guinea in connection with the alleged coup.

On 28 April 2004, the Government of Zimbabwe passed a statutory instrument in terms of which Equatorial Guinea was added to the list of countries to which Zimbabwe may extradite persons. The applicants also refer to news reports in Zimbabwe that President Nguema of Equatorial Guinea recently visited Zimbabwe for Independence-day celebrations, and on that occasion had a five hour meeting with President Mugabe of Zimbabwe at which the subject of the extradition of the applicants to Equatorial Guinea was discussed. This was referred to in comments made by the President of Equatorial Guinea after the meeting. The respondents offered no evidence to counter these allegations. I am satisfied that in the circumstances the applicants have established that there is a real risk that they are likely to be faced with proceedings in Zimbabwe for their extradition to Equatorial Guinea.

This does not mean, however, that they will in fact be extradited. The applicants deny the allegation that they were party to a plan to stage a coup in Equatorial Guinea. There is no reference to the precise nature of the charge on which the request for extradition is said to have been made, nor to the evidence that Equatorial Guinea has to support a claim for extradition under the Zimbabwe Extradition Act. In terms of the Zimbabwe Extradition Act an enquiry has to be conducted by a magistrate to establish whether or not there are grounds on which an extradition order can legitimately be made. The applicants will be entitled to resist such an order at the hearing. If the evidence against them is insufficient to justify extradition, the magistrate will not be entitled to grant an order. If an order is made, it would be subject to appeal.

The applicants argue that there is a risk that Zimbabwe will act illegally and hand them over to Equatorial Guinea without an order being made for their extradition. They have, however, produced no evidence to support this allegation. The applicants have been in custody for over three months during which the court proceedings against them have been pending. If the Zimbabwean authorities contemplate handing them over to Equatorial Guinea without an extradition order sanctioning such a procedure, it is unlikely that they would not have done so immediately after their arrest, or as soon as they received the request for extradition.

The applicants rely on media reports that the President of Zimbabwe had entered into an agreement with the President of Equatorial Guinea to extradite the applicants to Equatorial Guinea in exchange for the supply of oil. No attempt has been made to verify the accuracy of these reports. Apart from the reference to the media report, all that is said in support of the allegation is that there have been instances in the past in which the Zimbabwean government has ignored orders of court, and that the Zimbabwean authorities have in fact failed to comply with certain orders relating to the conditions in which they are kept in custody. But this does not mean that Zimbabwe is likely to act illegally, in breach of the duty that it owes to South Africa under international law, and hand South African citizens over to Equatorial Guinea contrary to orders made by courts dealing with the extradition application. The South African government cannot reasonably be expected to conduct its diplomatic relations with Zimbabwe on the assumption that this might happen, and to make demands on the Zimbabwean government on the assumption that they will act illegally and contrary to South Africa’s rights under international law.

The question of extradition to Equatorial Guinea has, however, been debated in the High Court and this Court and no purpose would be served by declining to deal with that question on the grounds that the demand is premature.

The claim relating to the risk of extradition to Equatorial Guinea was originally formulated in general terms but during argument counsel for the applicants limited the claim and formulated it as follows:

“Directing and ordering the Government to seek an assurance as a matter of extreme urgency from the Zimbabwean Government that the applicants will not be released or extradited to Equatorial Guinea without a prior assurance being obtained from Equatorial Guinea to the effect that the death sentence will not be imposed, and if imposed, will not be carried out.”

There were two strands to the applicants’ argument. The first was based on the decision in Mohamed’s case.⁷³ I have already dealt with that argument.⁷⁴ It has no substance and must be rejected. The second relates to an allegation still to be considered, and that is that if extradited the applicants will be subjected to a trial that is not fair. I deal later with this aspect of their claim.

The claim for extradition has not yet been lodged in the Magistrates’ Court and although there may be reasonable grounds to anticipate what the charges may be, the details of the evidence and the charges are unknown. Without that information it is not possible to say whether or not there is a real risk that the applicants will be extradited to Equatorial Guinea to face a capital charge.

No request was made for this relief prior to the institution of these proceedings. Moreover, according to the ILC report there is general agreement that diplomatic protection “is concerned with injury under international law, and not injury under domestic law.”⁷⁵ Capital punishment is permissible both in Zimbabwe and Equatorial Guinea. Capital punishment is also not impermissible under international law. If the applicants are extradited lawfully from Zimbabwe to Equatorial Guinea they cannot complain that they have suffered an injury according to international law solely on the grounds that they will face a capital charge in Zimbabwe. In the light of government’s stated policy concerning capital punishment in foreign countries, its response in its answering affidavit that it would seek an assurance only if capital punishment is imposed, is not a response with which a court can interfere.

The claim as formulated in the prayer and as amended by counsel must therefore be dismissed.

Fair detention and trial

The claim concerning fair detention and fair trial is formulated as follows:

“Directing and ordering the Government to ensure as far as is reasonably possible, that the rights of the applicants to fair detention and fair trial as guaranteed in section 35 of the Constitution are at all times respected and protected in Zimbabwe or Equatorial Guinea, as the case may be.”

As far as the fair trial claim is concerned, the prayer that is directed to section 35 of our Constitution is misconceived. For reasons that I have already given the claim as formulated cannot succeed.

Serious allegations have, however, been made about the criminal justice system in Equatorial Guinea. The applicants allege that if they are put on trial there and charged with being party to the alleged coup, they will be exposed to the risk of being convicted and put to death as a result of an unfair trial. That is a grave allegation which calls for close scrutiny and careful consideration by this Court. The incorrect formulation of the applicants’ claim should not stand in the way of this being done.

The allegations made about the justice system in Equatorial Guinea are based on reports of Amnesty International, the International Bar Association and a Special Rapporteur of the United Nations Commission on Human Rights. They cover a period from January 1999 to March 2004.

SAMUEL KAUNDA AND OTHERS	Applicants
versus
THE PRESIDENT OF THE REPUBLIC OF SOUTH AFRICA	First Respondent
THE MINISTER OF JUSTICE AND CONSTITUTIONAL DEVELOPMENT	Second Respondent
THE MINISTER OF SAFETY AND SECURITY	Third Respondent
THE MINISTER OF INTELLIGENCE	Fourth Respondent
THE MINISTER OF HOME AFFAIRS	Fifth Respondent
THE MINISTER OF FOREIGN AFFAIRS	Sixth Respondent
THE NATIONAL DIRECTOR OF PUBLIC PROSECUTIONS	Seventh Respondent
Together with
SOCIETY FOR THE ABOLITION OF THE DEATH PENALTY IN SOUTH AFRICA	Amicus Curiae

	Links to media summary

South Africa: Constitutional Court

Kaunda and Others v President of the Republic of South Africa (CCT 23/04) [2004] ZACC 5 (4 August 2004)