The LRC acted on behalf of the Society for the Abolition of the Death Penalty in South Africa as the Second Applicant. The individual applicants, Mr Tsebe and Mr Phale, were represented by Lawyers for Human Rights. Following oral argument, the High Court dismissed the leave to appeal application with costs.

The Deputy Director of Public Prosecutions in Botswana sought extradition of Tsebe and Phale from South Africa back to Botswana where they would be at risk of being subjected to the death penalty.

The Minister of Justice in South Africa requested assurances from the government of Botswana that Tsebe would not be subjected to the death penalty. The request for assurances was rejected refused. The Minister of Justice then decided not to extradite Tsebe and Phale, but then the Minister of Home Affairs decided that they would be deported to Botswana.

Tsebe and Phale sought an interdict. However, before the matter was heard, Mr Tsebe passed away.

In their application before a full bench of the High Court, the applicants contended that under the Constitution no removal of any sort may occur in circumstances where the extradition or deportation of a foreign national where he or she is at risk of being subjected to the death penalty. The High Court rendered its decision on 22 September 2011.

The High Court noted that in the 1995 Makwanyane decision, the Constitutional Court unanimously held that the death penalty constitutes inhuman and degrading treatment, and that it cannot pass constitutional muster. The High Court also relied upon the Constitutional Court's 2001 decision in Mohamed that prohibits the removal of persons to countries where the death penalty is still applied.

The High Court then ruled that the law of South Africa prohibits extradition in the circumstances of the case before it and that there is no international law obligation to extradition, deportation, or removal.

In the result, the High Court made an order declaring the deportation and/or extradition and/or removal of Tsebe and Phale to Botswana to be unlawful and unconstitutional, to the extent that it could not be carried out without Botswana's written assurance that they would not face the death penalty.

Following the High Court's judgment, the Minister of Justice filed a Notice of Application for leave to Appeal with the High Court setting out 18 grounds of appeal. The Minister of Home Affairs opted to seek leave to appeal directly to the Constitutional Court. While the High Court has dismissed the application for leave, the appeal by the Minister of Justice and the Government, the application by the Minister of Home Affairs for leave of appeal to the Constitutional Court remains pending.

ENDS.

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