CHAPTER 11 Extradition By John Dugard, Max du Plessis and Anton Kay, Extradition! may be defined as ‘the delivery of an accused et came, by ea to the state where he is accused of, or has ieee of, a 7 BY the state on, whose territory he happens for the time to be International lav oe recognize any general duty on the Pia Of states to Surrender criminals.3 In practice, therefore, the pean of criminal if is cued means of extradition agreements between states.* Although internat Hon law does Not require such treaties to follow a particular form, certain general principles of extradition law have emerged from the practice of states, which are commonly incorporated into extradition agreements. In 1990 the General Assembly of the United Nations approved a Model Treaty on Extradition containing many Of these Principles, which aims to provide ‘a useful framework’ for states in the Negotiation and revision of bilateral agreements.5 Before 1961, when South Africa became a Republic and left the Com: extradition between South Africa and other states was gove arrangements. Extradition between South Afri countries was regulated by the British Fugitive Offenders Act of 1881,6 while extradition between South Africa and non-Comm jonwealth states was governed by 1 IA Shearer Extradition in International Law (1971); NJ Botha ‘Extradition’ vol 10 2 ed (2008); C and I Stanbrook The Law gid and C van den Wyngaert (eds) International Criminal Law and Procedure (1996); NJ Botha The History, Basis and Current Status of the Right or Duty to Extradite in Public International Law and South African Law (LD, Unisa, 1992); G Gilbert Transnational Fugitive Offenders in International Law: Extradition and Other Mechanisms (1998); C Nicholls, C Montgomery and J Knowles The Law of Extradition and Mutual Assistance 2nd ea (2007) R Jennings and A Watts (eds) Oppenheim’s international Law vol 19 ed (1992) at 948-9, 3 Shearer (n 1) at 237; N Botha ‘The basis of extradition: The South African Perspective’ (1991- 92) 17 SAYIL 117 at 131-3, 4 For an examination of the different bases advanced for the i i sl granting of extradition, see Botha (n 3). Botha concludes that arises only in the context of a treaty Fi ‘reson 1897 Off Rep 287, the court held that there og be) ne ea in the absence of an extradition, agree ee Cf the dissent of Ameshoff J at 291-4. See also Harksen v President of th i i thers 2000 (2) SA 825 (CC) at part Y the Republic of South Africa and O 5 Resolution 45/116 adopted on 14 December 1990: (1991) 39 at E : : ILM 1407. her, B Swal Refusal of extradition and the UN Medi Treaty on Extradition, ae Yearbook on International Law 175, ¢ 6 44 & 45 Vict c 69, in Law of South Africa Practice of Extradition 2.ed (2000); J Dugard 214EXTRADITION i dition A wre suits ena i ee to 1906,’ which allowed the British Government a oe a eshiCoen ee pai ae pine the British Government and e ions, ea F anes veer the South African Soe South Africa acquired full treaty- ma on its own behalf, { was able to enter into treaties with other states and in this case the treaties were made applicable to se 138 Extradition Act of 1870 and the Royal Executive Functions af ven South Africa left the Commonwealth in 1961 allits extradition arrangements ‘ith ‘Commonwealth countries, including the United Kingdom, came to an end. south Africa's departure from the Commonwealth and new Republican status had no effect, however, On its extradition treaties with non-Commonwealth states, which remained in. foe In 1962 the Extradition Act 67 of 1962 was enacted to govern the country’s extradition relations. This statute, which remains in force, empowered the President to enter into extradition agreements with foreign. states.!° South Africa’s political isolation during the apartheid era made it almost impossible for it to extend its network of extradition agreements.!! Agreements entered into by the British Government on behalf of South Africa under the 1870 to 1906 Extradition Acts were carefully preserved,!? but new agreements were limited to states within the southern African region’? and to fellow pariah states—Israel!* and the Republic of China (Taiwan).15 In these circumstances a special arrangement was made to allow South Africa to return a fugitive to a state with which there was no extradition agreement. The State President was empowered by s 3(2) of the 1962 Extradition Act to consent to the surrender of such a person on an ad hoc basis. South Africa's return to international respectability has rescued it from isolation in respect of extradition. In 1996, South Africa became covered by the Commonwealth 7 33 & 34 Vict c 52 (1870), 36 & 37 Vict c 60 (1873), 58 & 59 Vict c 33 (1895), 6 Edw Vil ¢ 15, (1906). (Phe Extradition Act 2003 now governs extradition to and from the United Kingdom.) Section 7 of Act 70 of 1934. Section 2(4) of the Extradition Act 67 of 1962, See Chapter 20 on succession to extradition: agreements. See, too, N Botha ‘Strange bedfellows: South Africa and accession to the European Convention on Extezdition 1957! (1998) 24 SAVE 247)av 240-53 tobias sutnos Cctalncs the present state of South Africa's extradition relations with European states. Section 2 of Act 67 of 1962. See Botha (n 3) at 118 fn 6. This was not always possible. In 1968, Denmark terminated its agreement with South Africa: Ese 187 GG 2101 of 21 June 1968. Neate meee aziland ctober 1968 (Reg Gaz 1026); Botswana (Proc RUS GG 2376 of 2 Ascot cai ‘Malawi (Proc 67 GG 3424 of 24 March 1972). “Proc Rid GGE 6362 of 5 February 1960 (Reg Gaz 6), amended by Proc R184 GG 5283 of 10 4 Spembey 1976 (Reg Gaz 2367). Toc 83 GG 11316 of 24 May 1988. a 2 a 215 #INTERNATIONAL LAW: ASOU’ 3 of 1990,!° when the ffenders ee try designated!” by the to a count ment. | treaty but rather an agreed s the basis of reciprocating adition Amendment Act of “The Extradition " ogame alia, to bring South African law f 1962) inte “ith Scheme. In 1998, Namibia, nated’ for the purposes of fo the Rendition ded to allow extradl : .d for an extradition agre e is not a multilatera tradition which form Scheme relating t Extradition Act was amen President without the nee’ The Commonwealth Schem‘ guideline of principles on ¢x legislation enacted in Commonwe 199619 amends the Extradition Act 0! aa into line with the guidelines of the Common! Zimbabwe and the United Kingdom were ‘desigt extradition.?° In the past decade, South Afric a treaties, For instance, in 2001 it entered in| and, in 2003, it acceded to the European There are a number of constitutional anom Extradition Act (the Act). In the first place itis diffic President to consent to an ad hoc extradition unde n th in s 231 of the 1996 Constitution that treaties be approved by Parliament to bind the Republic internationally, and that they be incorporated by national legislation to have domestic effect. The President's consent to extradite under s 3(2) is preceded by an exchange of notes between South Africa and the state requesting extradition which appears to constitute an international agreement, for which s 231 requires approval by Parliament as well as incorporation into domestic law by national legislation. However, in Harksen v President of the RSA and Others,?3 the Constitutional ably to its arsenal of extradition reement with the United States Convention on Extradition of 1957.21 omalies arising from the present ‘ult to reconcile the power of the rs 3(2)2 with the requirement a has added consider to a new ag -alth law ministers, based on an earlier scheme of 1966 ‘he Fugitive Offenders Act of 1881 (supra n 6). The text can be found in Annexure F to the South African Law Commission’s Report on International Co-operation in Criminal Prosecutions (Project 98, December 1995). See, further, D McClean International Judicial Assistance (1992); N Botha ‘The Commonwealth Extradition Scheme and the Law Commission Working Paper 56 (1995) 20 SAYIL 40; and D van Zyl Smit ‘Developments. in criminal law and criminal justice: Re-entering the international community—South Africa and extradition’ (1995) 6 Crim LF 369, 17. Although the power to ‘designate’ a state for the purposes of extradition is primarily intended for Commonwealth countries, it is envisaged that ‘designation’ may also be extended to a non-Commonwealth country that has the appropriate extradition legislation in place: see the South African Law Commission's Report on International Co-operation in Criminal Prosecutions (Project 98, December 1995) p 171 (para 6.105). 18 Section 2(1)(b) of Act 67 of 1962, inserted by Act 77 of 1996. 19 Act 77 of 1996, 7 20 GNR 188 GG 18663 of 13 February 1998. 21 GNR 593 GG 22430 of 29 June 2001 (Reg Ge i 22 Ironically this power seems to have been used more fre Se (n 3) at 137 lists three cases in which this power was oo since 1990 than before: Bows used in a number of reported cases: Hianiner y Minister of Lon go oye at eR aid (WS v Bell [1997] 2 AILSA 692 (B), Sv Thorn 1907 Oh Cie a Order 1992 () SACRA the Republic of South Africa 2000 (2) SA 824 (CC) 7 (2) SACR 626 (C); Harksen v President of of South Africa 2003 (3) SA 34 (CO). at 829E-F; Geuking v President of the Republic 23 2000 (2) SA 825 (CC). For comments tet ste TS arkSear HaPRSeH precaoy ae and the decision of the Cape Provincial see Dugatd in/2000/Anrual Survey 114; NB he RSA; Harksen v Wagner 2000 (1) SA 1185 (©) 1 Southwood in (2000) 25 SAYIL 260, ha in (2000) 27 SAYIL 311 and 2000 CILSA 271) 16 This Scheme, drawn up by Commonwe (HMSO, London Cmnd 3008), replaces t 216[ EXTRADITION e , nae In Geukin, i ee tutional Court dismissed a challenge to 5 eect TS 0! 32) ont it 1H Coe er the President to Consent to surrender a on te Sune that it dos Person to a forei; 2 med to hold that such a power was necessay ae ea onl, another anomaly arising from the Act is that the procedure for orating extradition agreements entered into after 1996, and ‘designation oeeme nts’ made after this date, into domesticlaw fails to follow the requirements wcribed bys 231 of ae 1996 ae The Act Provides, correctly, that such ements and designa a approved by Parliament,”® as required by s ‘Fie, butit does not provide ir th Incorporation of the agreement or ‘designation’ into domestic law by nation “gislation’ as required by s 231(4). Instead it merely rovides that the Minister of Justice shall give notice of Parliament's approval of the agreement or ‘designation’ in fe Government Gazette;2° which notice does sot qualify as ‘national legislation’. This anomaly arises because the Extradition Amendment Act 77 of 1996 was adopted while the Interim Constitution was still in force, and before the adoption of the Constitution of the Republic of South Africa, 1996.2 The Interim Constitution did not require the legislative incorporation of treaties. The failure of the Extradition Act to provide for incorporation as required bys 231(4) of the Constitution was challenged in President of the Republic of South Africa and Others v Quagliani, and Two Similar Cases.33 The Constitutional Court avoided dealing directly with the challenge and held instead—in a form of reasoning that is difficult to follow—that ‘(either the Agreement has “become law” in South Aftica as a result of the prior existence of the [Extradition] Act which constitutes the anticipatory enactment of the Agreement for the purposes of section 231(4) of the Constitution, Or the Agreement has not “become law” in the Republic as contemplated by section 231(4) but the provisions of the Act are all that is required ‘ogive domestic effect to the international obligation that the Agreement creates’34 —_ * 2000 (2) SA 825 (CC) at 834 para 21. % Ibid 834 para 22, % Ibid 835-6, 7 2003 (8) SA 34 (CC), % Ibid at 44-5, > 3 ction 23) of Act 67 of 1962. 31 Setion 20ter, 1553239 of the Constitution 1996 for the definition of ‘national legislation, which does not 2 putdé government notices Crigy® lear from the Report of the SA Law Commission on International Co-operation in ® 2009 al Prosecations (Project 98, December 1995) p 167 (para 6.90). 4 Para gg. 8 $66 (CO). 217prsrective ye ASOUTH AFRICAN PER pect wing adequately addresseq cement. 1D SUCH a Cage on agree ticular extradition ag INTERNATIONAL LAM ized as not ha ‘i « been eritic The deciston in Questia has been jonal difficulty an extraditic the constituti Rr Most extraditions oceur In (TIPS 9 11. she par extradition proceedings are BV" nee quests extradition and by the Extradition Ag, tate red nes the offences In respect of determi in which extradition may be to be followed in extradition extradition may be refused, reign S adition agre and the € in terms of which the f vement 67 of 1962, While the ext! umstannce possible arcu ‘scribes the procedure which extradition is ces in which refused, the Extradition Act Pl ; of the circumstar f proceedings and some of the citcun 7 teral_ convention Post extradition agreements are bilateral. The multilater S for the king, to which South Africa is a party do) bee direct the ders. Both the Extradition act*® and the Civi Aviation Acti? tition of such offenders South Africa is also a party to avention on E xtradition of 1957. lly include a number of com: will now be examined EXTRADITION suppression of hij extradition of off make provision for the extrad the multilateral European Con Extradition agreements gener prohibit or obstruct extradition, These FACTORS OBS TRUCTING mon clauses that diction over their nationals for ‘xemption of their own nationals from h in most circumstances do not exercise extra-territorial jurisdiction over their nationals, adopt a different approach and allow the extradition of their nationals. These divergent attitudes undermine the important principle of reciprocity. The compromise is for a treaty to include a clause efuse to extradite its own nationals.*° This that gives either state a discretion to ¥ to refuse extradition of their nationals and to try such allows civil-law countries nationals themselves, while at the same time permitting common-law countries to extradite their nationals for offences committed abroad beyond their criminal jurisdiction. 1 Extradition of nationals** Civil-law countries, which exerc offences committed abroad, favour the extradition? Common-law countries, whi ise personal juris 3s. Du Toit et al Commentary on the Criminal Procedure Act (vol 2) at Appendix B16-B17; N Botha ‘Rewriting the Constitution: The “strange alchemy” of Justice Sachs, indeed!: South African judicial decisions’ (2009) 34 SAYIL 253-67. See further Chapter 4 36 Section 1 of Act 67 of 1962. 37. Section 133 of the Civil Aviation Act 13 of 2009. 48 See Shearer (n 1) at 94-131. ‘The European Convention on Extradition of 1957 : 57 (I ng Berean in une 3 Extradition (n 5) recognizes nationality as an optional ground for the refusal of extodton 39 (article 4(a)). See, for example, the Extradition Agreement between South Africa and the People’s Republic 40 of China, which provides in article 5: (1) A.C ee et ofthe person sought, the Requested State shal, at the request of the Contra of the Padi a Sean 1969 (2) SA 224 (1), the Court held that 2 200 isone that ‘rests with the Minister’ and not the Cougt t 22 ona he Court (at 2258). 218EXTRADITION In the present case, the President stated j id din the affidavi it vl lavit he caer iyo eens Fat cant unas sehare nee can find no constitutional pros G0 have been a relevant consideration, I FRG and many other civil law iene that policy decision. Unlike the aoe ERTS pee POUCY that it is in the interests of the Republic raditio} of is or her citizenship.#2 mn proceedings against a person, regardless 2 Double criminality The principle of double criminality requires that the conduct claimed to constitute an extraditable crime should constitute a crime in both the requesting and the requested state. It is not necessary that the offence should have the same name in both states, provided that it is substantially similar.43 In the past it was common practice to list the offences in respect of which extradition is to apply in the extradition treaty. Today the tendency is for parties to provide for extradition in respect of crimes that are punishable in both the requesting state and the requested state with a sentence above a particular sever without naming the crime. For instance, the agreement between South Africa and the People’s Republic of China*4 provides: For the purpose of this Treaty, extradition shall be granted for conduct which constitutes an offence under the laws of both Contracting States that is punishable by imprisonment for a period of at least one year or by a more severe penalty. 41 2003 (3) SA 34 (CC). See, too, Geuking v President of the RSA 2001 (1) SA 204 (C).. 42 2003 (3) SA 34 (CC) para 28, See, too, Abel v Minister of Justice 2001 (1) SA 1230 (C) at 1240F-H. CE DPP: Cape of Good Hope v Robinson 200 (4) SA 1 (CC) para 20. 43 See article 7(2) of UN Model Treaty on Extradition supra (n 5); articles 2(3) and (5) of the extradition agreement between South Africa and the Peoples’ Republic of China (n 40). See, too, Geuking v President of the RSA 2003 (3) SA 34 (CC) at 51 para 45; Abel v Additional Magistrate, Cape Town 2002 (2) SACR 83 (C) 92; S v Bell [1997] 2 All SA 692 (E) at 699b-c; S v Thornhill 1997 (2) SACR 626 (C) at 636e; Harksen v President of the RSA 1998 (2) SA 1011 (© at 1038H-I. Palazollo v The Minister of Justice and Constitutional Development and Others, unreported decision of the Western Cape High Court dated 14 June 2010 under Case No 4731/2010. See, further, M v Federal Department of Justice 75 ILR 197 (involving an extradition agreement between Switzerland and South Africa); R v Governor of Pentonville Prison; Ex p Budlong [1980] 1 WLR 1110; Re Nielsen [1984] AC 606 (HL); Riley v Commonwealth of Australia 189 CLR 1, particularly at 15-20. In S v Bell supra, at 699-700 the Court held that the principle applied in respect of crimes that had prescribed under South African law. “4 Supra (n 40), article 2(1). 219 a ee ipprsrective INTERNATIONAL LAW: A SOUTH AFRICAN T wes this approach by pro The Extradition Act, as amended In 1996, approves (ht PP Y Providing le radition Act, as amendee that: ... . y offence which in tern , the law of the aitable offence’ means any offence WHE" CT chable by a sentence of of the foreign state CONT iperty for a period of six months Republic and imprisonment or other f or more.!* stion whether the crime in respect of which South Africa at the time of the extradition committed. In normal circumstances request and there is no reason why the al date is that of the extradition reque pies ca esac coe a occa extends the Act to offences committed before the Act or extradition agreement came into operation, supports this interpretation. A South African court i has, however, followed the controversial interpretation of ‘extradition crime’ applied by the House of Lords in the Pinochet Case,” in which it held that the former Chilean dictator could not be extradited to Spain for acts of torture committed in Chile before the United Kingdom en: Torture Convention into municipal acted the 1984 T vel : law by reason of the principle of double criminality, which it interpreted—in terms of its own statute—to apply only to o! ‘fences committed abroad that were punishable as crimes in the United Kingdom at t form of deprival The Extradition Act is silent on the que’ extradition is requested must be a crime 17 request, or at the time the alleged offence wa (above) shou he time of their commission. 3 Speciality According to the principle of speciality an extradited person may not be tried for radited, unless the extraditing state an offence other than that for which he was ext consents to such a prosecution. This principle is confirmed by the Extradition Act*8 and is a common clause in extradition agreements. In terms of the Act a person may be tried for an offence other than that for which he was extradited if the offence is one for which he might lawfully have been convicted on a charge of the offence for which extradition was sought.*? The Supreme Court of Appeal held in S v Stokes,°9 that the word ‘sought’ in s 19 of the Act should be read as ‘successfully sought’ and the principle of speciality thus respected. 45 Section 1 of Act 67 of 1962. 46 Palazollo (n 43) at para 34. 47 Rv Bow Street Metropolitan Stipendiary Magistrate; Ex p Pinochet Us I n 7 Igarte (No 3) [1999] 2 AIL ER 97 (HL), See, on this decision, A O'Shea ‘Pinochet and beyond: The ie caetal i: of ane (2000) 16 SAJHR 642, 653-56; M du Plessis ‘The Pinochet cases and South African. extradition law’ (2000) 16 SAJHR 669, 680; C Warbrick ‘The extradition law aspects of Pinochet’ (1999) 48 ICLQ.958. ‘ 8 EE ere Ha ot 02s In Harksen v President of the RSA 1998 (2) SA 1011 ©) law (at 1039-40) leciding that the principle is part of customary international 9 Sections 23() and 19 of the Act 67 of 1962. ) 2008 (5) SA 644 (SCA) at para 10, 220 Prana.sone EXTRADITION 4.Non bis in idem erson may not be extradited in t i i Tespect of n acquitted, or Convicted an offen been winciple of autrefois acpuny ore TeWUested state, This pon ch he has already the F ition ACE De ee (or autrefois convict, is me nciPle, which confirms Extra 'PPears in most extradition an is not oi included in the ements, 5 Offences of a political characters? x ‘ government; ar iti ofender unlike ordinary criminals, threaten only the « Senay Doe the state aa eae have fled and not that of the state granting aera Over the years 1c Image of the political dissident fighting for democracy hi been tarnished by the political terr . Shsaeree : 1 ‘orist fanatically determined to overthrow th regime of his home state by all means, including hostage-taking eileen As a result the political offence exception has become highly controversial and courts have sought to define the political offence in such a way that it excludes the political terrorist but does not abandon the protection of the genuine political dissident. South African extradition law recognizes the Political offence exception. Section 15 of the Extradition Act empowers the Minister of Justice to intervene at any stage during extradition proceedings in order to release a fugitive if he is satisfied that the offence in respect of which extradition is sought is ‘an offence of a political character’. Moreover, extradition agreements to which South Africa is a party generally exempt the political offender from extradition. The 1968 agreement with Swaziland,53 for example, provides in article 3: A person claimed shall not be extradited if the offence for which his extradition is requested is regarded by the requested Party as one of a political character, or if he satisfies the requested Party that the request for his extradition has in fact been made with a view to try or punish him for an offence of a political character. S1_ See, for example, the Agreement Commission, it is a basic principl omission from the Act: Report of the SA Law Com Criminal Prosecutions (Project 98, December : ® Cvan den Wyngaert The Political Offence Exception. The Delicate Problem of Balancing He Rights Of the Individual and the International Public Order (1980); Shearer ws Bee ae ‘Non-extradition of political offenders’ (1969) 32 THRHR 176; DATONG te Pee Cinhiers exception in international extradition’ (1980) 13 CILSA 24%; Mt MICE eS ter 69; D ‘Non-extradition of political offenders: A superfluous atet ike om uitlewering’ 1996 Dorfling ‘Die “politieke misdryf”—Uitsondering (vervee in aansoe TSAR 475, + Proc R292 GGE 2179 of 4 October 1968 with the United States (n 21) article 6. According to the Law ie of law that must be applied by a magistrate despite its ‘Commission on International Co-operation in ) at 159 (para 6.67). (Reg Gaz 1026). 221INTERNATIONAL LAW: A SOUTH AFRICAN PERSPECTIVE to municipal law in accordance jaw of the land, with the nether the offence is one ent is incorporated into mu comes part of the ‘0 consider WI Once an extradition agreem with s 2 of the Extradition Act, it Decor” result that a municipal court will be require of a ‘political character’. ifficulty in decidin; courts throughout the world have experienced vee nai ition are aes A an offence is one of a political character. ces i such as murder or robbery, offences. Problems arise in the case of ordinary crimes) 1° 7 a a when they are politically motivated. A oy Paaaen the occasion arises there ig upon to examine this problem in any detail, ne thegae little doubt that guidance will be sought in English Ee ; angel eta ‘political offences’, laid down in the fe a Promotion of Nal and ea Act of 19956 in order to determine wi » ing the ‘ho would qualify for amn‘ abandonment of apartheid. (a) English law and the political offence 4 lay down an exclusive definition of political Israel, Lord Radcliffe said: ever likely to. Indeed it has come s to be no definition.57 English decisions have refused to offence. In Schtraks v Government of [NJo definition has yet emerged or by now is to be regarded as something of an advantage that there is ‘The decisions do, however, lay down a number of tests or guidelines. Inte Castioni’® involved a political uprising in Switzerland against the government of one of the cantons in the course of which Castioni killed a member of the government. He then fled to England. His extradition was refused on the ground that the offence was incidental to and formed part of a political uprising and was therefore an offence of a political character. This ‘incidence test’ has been approved by courts in the United States. In a decision involving the extradition of a member of the Irish Republican Army to the United Kingdom the test was formulated in the following language: First there must be an uprising, a political disturbance related to the struggle of individuals to alter or abolish the existing government in their country ... Second, the charged offence must have been committed in furtherance of the uprising; it must be related to the political struggle or be consequent to the uprising activity.’? This test, premised on the presence of a political disturbance or uprising, is too restrictive. In R v Governor of Brixton Prison, Ex p Kolczynski & others,®° the court 54 Sv Bull 1967 (2) SA 636 (T) at 642E-G. 55 Ex parte Rolff 26 SC 433 at 436, 439; S v Devoy 1971 (1) SA Leary SA 241 (SRA) at 243-4. ry (1) SA 359 at 363E-H; S v Sibanda 1965 (4) 56 Act 34 of 1995. 57 [1964] AC 556 (HL) at 589. 58 [1891] 1 QB 149 at 166 (Hawki : ae Qa (Hawkins J) and 156 (Denman J). See, too, Re Meunier [1894] 2 QB 415 59 Quinn v Robinson 783 F 2d 776 (9th Cir 1989), S ‘ - 1981) at 518-23, involving the extradition Sone are ee 60 [1955] 1 QB 540 at 551. e to Israel. 222EXTRADITION the government concede some measure of fr supplant it. In the same case, Lord Radcliffe declared: In my opinion ine idea that lies behind the phrase ‘offence of a political character’ is that the fugitive is at odds with the state that applies for his extradition on some issue connected with the political control or government of the country.6 English courts have stressed that not every politically motivated crime will qualify asa political offence. In Cheng v Governor o if Pentonville Prison,S* Lord Diplock stated: But if the accused had killed a dictator in the hope of changing the government of the country, his object would be sufficiently immediate to justify the epithet ‘political’. For politics are about government. ‘Political’ as descriptive of an object to be achieved must, in my view, be confined to the object of overthrowing or changing the government of a state or inducing it to change its policy or escaping from its territory the better so to do. Although T v Secretary of State for the Home Department®5 concerned an application forasylum, by a member of the Front Islamique du Salut (F @ bomb at Algiers Airport which killed ten people, thorough examination of the political offence excepti of Lords held that the applicant failed to qualify for asylum in terms of article 1F(b) of the Convention Relating to the Status of Refugees of 1951, which denies the Sranting of asylum to a person who has committed a ‘serious non-political crime Suside the country of refuge’. Lord Lloyd, for the majority, defined a ‘political IS) responsible for placing the House of Lords made a ion in extradition. The House ——— & [1964] Ac 556 (HL), 2 At sg3, 83 At go. % [1973 Ex p Treasury Solicitor {1968} 3 Al ER 804 (QR), where Capen a a oct ea offender could claim political ; sylum with any prospect of success (810D). 11996) 2 all ER 865 (HL) 223INTERNATIONAL LAW: A SOUTH i excluded terrorism as a political nec 1n(b) of the 1951 article artitcal purpose, that is to crime’ in language, that by offence. He stated: cal crime £0 ime is a political crim et fora os A crime is 3 port if (1) IS CO verti 2 Penanging the government convention if, and only HT ving orsubNe! chortpere sa sufficiently litical purpose. In comvith the object of vert TES is polly aod Oe oP state or inducing It to changé “ond the alleged Po ind the means ecrime @ tween the cfin court Wil anes and di weerink exists, Re COV" reiculat regard to whether ieterminin 1d will hi the one hand, e t, OF ised to achieve the P' tal target e the crime was aimed ‘whether it was likely to he ic 65 or a civilian target on t af { the public. pr olve the indiscriminate Killing () Amnesty and the political offence ‘ats ‘The Promotion of National Unity a Nant amnesty t0 in amnesty committees which Were CPC ih a political objective committed in sought amnesty for acts or ‘an act associat E swith 2B full disclosure of all 12 the course of the conflicts of the past art ag act was one ‘associated with facts.58 The criteria employed for deciding whether ' ; ‘ ciples used in extradition law for a political objective’ were drawn from the princip ‘dition was sought deciding whether the offence in respect of which extra on 2 me a Ve a political offence. The criteria included, inter alia, the motive of the 0: fender; the context in which the act took place and, in particular, whether it yay committed ‘in the course of or as part of @ political uprising, disturbance or event’; the gravity of the act; the objective of the ‘act and in particular whether it was ‘primarily directed at a political opponent or state property Or personnel or against private property or individuals’; whether the ‘act was committed in execution of an order by an organization; and the relationship between the act and the political objective pursued, and ‘in particular the directness and proximity of the relationship and the proportionality of the act to the objective pursued’. This statutory ‘codification’ of the political offence, and the interpretation of this provision by courts and amnesty committees, may serve as a useful guide to South ‘African courts when they confront the political offence as a defence in extradition proceedings. rect link bet whether suc! nd, an’ litical ry or governimen members © Act of 1995%7 established n dividuals who 66 Ibid at 899. See, too, the dictum of Lord Mustill at 878-86. 67 Act 34 of 1995. 68 Section 20(1). See St a“ ui ). See Stopforth & Veenendal v Minister of Justice and Others 2000 (1) SA 113 (SCA) I" which the Supreme Court of Ay peal h Pasar oeeratorrencd commit ed in ae amnesty committee had no power to it 69 Section 20(1). 224EXTRADITION national terrorism and the political offence ig inter i nal terrorism presents a particul, a 70 nt a of ot ae pen ea tao, mo for the political offender. There is, howev (rant dotieiincd iq down for 7 ‘i is, er, an important difference weet Castioni’’ and the hijacker of an international flight, Castion\’s offence threatened the lea ae oF One state only—Switzerland. Hijacking, on the other pand, threatens a is ional order and demands an international co-operative response: At Pe ; i pons takes the form of extradition or trial by the state with physical contro oe the offender (aut dedere aut judicare),”? which would be defeated if the political offence exception were to be allowed. Consequently there sca measure of consensus that the political offence exception should not apply to {he extradition of international criminals. unfortunately early multilateral treaties creating international crimes do not expressly exclude the political offence exception. The Hague Convention of 1970 on aerial hijacking,’ for example, obliges the state with physical control over the hijacker to extradite him, or to submit his case to its competent authorities for the purpose of prosecution in the same manner that it would consider the prosecution ‘ofany ordinary offence of a serious nature’ under its own law. This does not prevent guch a state from either deciding that the offence is one of a political nature” or pursuing a “friendly prosecution’ of the offender.’5 Most other conventions of this kind follow the precedent of the Hague Convention.’6 ‘The European Convention on the Suppression of Terrorism of 197777 adopts a different approach in expressly providing that acts of international terror, including enatio! nation n0 See, on this subject, Van den Wyngaert (n 52) at 139-58; Colloquium ‘Terrorism as an international crime’ (1989) 19 Israel Yearbook of International Law; J Dugard “Terrorism and international law: Consensus at last?’ in E Yakpo and T Boumedra (eds) Liber Amicorum Mohammed Bedjaoui (1999) 159. ] Dugard ‘The problem of the definition of terrorism in international law! in P Eden and T O'Donnell (eds) September 11, 2001: A Turning Point in International and Domestic Law? 187; ‘Symposium on terrorism’ in (2011) 24 Leiden Journal of International Law 651-700. 7 Supra (n $8). 7 See Chapter 9. 5 Convention for the Suppression of Unlawful Seizure of Aircraft (1971) 10 ILM 133, article % In 1975 the Chambre d’ Accusation of the Court d’ Appel of Paris refused a request from the United states to extradite Holder and Kerkow on hijacking charges on the ground of political motive. See McDowell Digest of United States Practice in International Law (1976) LoS: JM Sweeney, CT Oliver and E Leech Gases and Materials on the International Legal Spstem 3 eat (1988) 293, Ibid. Arguably, the prosecution in 19 abortive coup against the government * oe 1982 (4) SA 865 (N). aera eee ' ee, for example, the Convention on the Prevention and Punishment of Crimes agains Intemationally Protected Persons including Diplomatic Agents, of 1978 (1974) 13 ILM 43, ticle 7; the International Convention Against the Taking of Hostages (1979) 18 ILM 1450, articles 8 and 9, (1976) 15 1x act of this Conve! Dermits a sete eae ae Hunt to refuse extradition in respect of a political offence after due consideration oF g suraber of factors relating to the offence. See C van den Wyngaert Political offence exception to extradition: How to plug the “terrorists loophole) without leparting from feria sereal human tights’ (1989) 19 Israel Yearbook on Human Rights 297, Ho 82 of the hijackers of an Air India flight following an t of the Seychelles fell into this category: Sv Hoare ard jon is weakened by article 13, which 225py RSP FEAT ONAL LAGHTA SOUTH AFRICAN —_— sa xtradition Agreement of of Terrorist Bombings ion of the Financing of acts of international terror, to extradition.”? Finally, it 5 exclude from the ambit under a multilateral treated a F trea an union y, shall hijacking and hostage-akings of extradition, This is contin’ 1996.78 The International Cor of 1998, and the Internation’! Tr Terrorism of 1999, unlike other We as an de tapresaly exclude the political offer °° eement 10 6 is today not uncommon for an ext d offen of the political offence eee prosecute arene al by the Prone penirnnoses ga me 1 : treaty which imposes an OPN on Act Of 1962 activities Act 33 OF 2004, In 2004, the South AI Paey against reroist ana Related Aer eson is charged to exclude the politica with ‘terrorist activity’.*" 1 Conv ties cl 6 Human rights iti npat Extradition has not escaped the im principles have been adopted by extraditior ce fi obstruct extradition despite their absenc om the or pased in treaty or custom, latter case it is claimed that human. rights norms, a higher status til ound that they enjoy 4 a ‘trump’ extradition treaty obligations on the §} PRA tal cous as part of the public order of the ae nee eee adopted Beene two principal human rights no! adopted ey aus Bane pe ieecconi concern the death pena ian ar disc ae roa i it emel it is common practice for extradition agre iH _ 5 rie crime in Ree of which extradition is sought is punishable ea death in the state requesting extradition, but not the requested state, unless the requesting state provides a satisfactory assurance that the death penalty will not be imposed, , 82 Some human rights "i rights law. got Seen others have been used to n NO rom the extradition agreement. In the 78 Official Journal of the European Communities No C313/12 of 23 October 1996. This Agreement goes further than the European Convention on the Suppression of Terrorism (n 77) as it does not permit states to attach reservations to the obligation to extradite those suspected of offences constituting international terrorism: article S. (1998) 37 ILM 249; article 11; (2000) 39 ILM 268, article 14. See the extradition treaty between South Africa and the United States of 2001 which excludes not only such crimes from the political offence but also murder and offences against the head Of state: GN R593 GG 22430 of 29 June 2001 (Reg Gaz 7100), article 4 4 sy 81 82 See } Dugard and C van den Wyngaert ‘Reconcili 92 AJIL 187; GN B: P ‘econciling extradition wit! ahtst ape 198 akan fay Asan an proceedings Changing the wen landscape’ 1998 TSAR 125; M di is lu Plessis torial application of the South African 4 The extra-te Constitution’ (2003) 120 raster eee seas aM Labuschagne and M Olivier ‘Extradition, 130. ony the process of the internationalization human rights and the dea of criminal justice values’ (2003) }) 28 SAYIL 130; C Pyle Extradition, Politics and Human Rights (2001). 226ys EXTRADITION et ill not be executed? imposed, wi ccuted.§3 In Mol » * of eutional Court held that it Mohamed v President of the RSA™* the was ‘UNCONStitutios . a nal to extradite any person including undocumented foreigners) to a country where he or she may face the ceath penalty ifput on trial. South Africa can only lawfully extradite a person if the requesting state providesan sbsurance that the death penalty will not be sought, or igimposed, will not be carried out.85 It js also increasingly the practice for treaties to exclude extradition where the requested state ‘has substantial grounds for believing tnat a request for extradition for an ordinary eriminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, relistion nationality or political opinion, or that that person's position may be prejudiced for any of these reasons’"® In 1996, the Extradition Act was amended to include such 4 bar to extradition, extended to co x 2 ver gender discrimination.s’? The UN Model ‘treaty on Extradition’ and the Convention against Torture®? prohibit extradition where there are substantial grounds for believing that the extradited person will be subjected to torture or to cruel, inhuman or degrading treatment or punishment in the requesting state. The UN Model Treaty on Extradition also prohibits extradition if the extradited person is unlikely to receive a fair trial.9° The manner in which an obligation contained in a trump an extradition treaty obligation is illustrated by the decision of the European Court of Human Rights in the Soering Case! Soering, a West German national murdered his girlfriend's parents in Virginia and fled to the United Kingdom, from which his extradition was requested by the United States. After the United Kingdom ordered his extradition, he petitioned the European Commission of Human Rights, which referred the case to the European Court of Human Rights. The Court held human rights treaty may 83 This formula, adopted from article 11 of the European Convention on Extradition of 1957 (1960) 359 UNTS 273), appears in article S of the US-South African extradition treaty (above n 21). In United States v Burns [2001] 1 SCR 283, (2001) 40 ILM 1034, the Canadian Supreme Court held that there was an obligation on the Canadian government to seek an assurance from the requesting state (if it applied the death penalty) that the death penalty would not be imposed. $4 2001 (3) SA 893 (CC). See too Tsebe v Minister of Home Affairs Case no 27682/10 (South Gauteng High Court, 20 September 2011). 85 In Makwakwa v $ [2011] ZAFSHC 27 (11 February 2011) the request for extradition by Lesotho in respect of conduct that included conspiracy to kill the Prime Minister of the Kingdom of Lesotho included a written assurance that the death penalty would not be carried out should be imposed. See article 3(2) of the European Convention on Extradition (above n 77); article 4(3) of the Us-South African Extradition Treaty (above n 21). Sections 11(b)(iv) and 12(2)(c)(il) of Act 67 of 1962. 88 Article 3(f) (n 5), © Atticle 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment of 1984; (1984) 24 ILM 535. Article 3(f) (n 5) prohibits extradition if the extradited person woul not receive the minimum 8uarantees for a fair trial contained in article 14 of the International Covenant or Civil anct i Felt Rights. ICHR Series A gment of 7 July 1989; (1989) 28 ILM 1003. Cited with approval by Gubbay cy ical carer ee Tanita and Peace in Zimbabwe v Attorney General ttt Others 1993 (4) SA 239 (ZS) at 261-4. See, further, C van den Wyngaert “Applying the ‘Topean Convention on Human Rights to extradition: Opening Pandora's box? (1990) 39 12LQ 757; R Lillich “The Soering Case’ (1991) 85 AIIL 128. 86 7 %0 227pecTive can rersrect! INTERNATIONAL LAW: A SOUTH AFRI ANE sof the F uropean Convention le aquired, by artic egrading treatme that the United Kingdom was ne Nail j inhuman Bac ‘nee a a - hich prohibits te ad States, ¥ ‘on Human Rights which P ite atment by being kept soering Jegrading tres wf Virginia. The Court found iid take place outside the l nm from responsibility for any ‘ot absolve the Ur United Kingdom did n iwrored outside its jurisdiction. The same § 1 si ; ‘ foreseeable consequence of Ses ations Human Rights Committee in Ng v nited Na or punishment, to extradite risk that he would be subjecte fon death row for a prolonged perm that the fact that the actual hu approach was followed 9) That Canada had violated its obligations under Ganarta? Here the Committee Held NNT Cis and waitical Rights prohibiting nar ment by extraditing Ng to the en that, if sentenced to death a form of punishment in article 7 of the International Cove! cruel, inhuman or degrading treat United States when it could reasonably hav in California, he would be executed by gas @ violation of that prohibition. “There are other human rights violation inhuman or degrading treatment OF punis obstruct extradition. They are ifs imprisonme ae al pre-trial interrogal - i ‘ Sere opine branch of extradition law. The ta view that the courts of a requested state will not examine the standards of justice applied in the requesting state is 10 longer followed by many states. Most courts today seriously consider the human rights implications of extradition; and there is increasing practice in favour of making extradition conditional upon the giving of satisfactory assurances by the requesting state that the extradited person’s human rights will be respected in that state.°° South Africa is a party to most international human rights conventions. Moreover most of these rights are given constitutional endorsement by the Bill of Rights contained in the 1996 Constitution. Extradition to a state unlikely to respect the rights of the extradited person may therefore be challenged in a South African court on the grounds that such extradition will violate both the country's treaty obligations and its constitutional rules.°6 In Kaunda and Others v President of the RSA and Other 5,97 an appeal was made to the above principles in highly peculiar circumstances. The applicants, South African nationals, were arrested in Zimbabwe on suspicion of being mercenaries en route to Equatorial Guinea to stage a coup against the President of that state. Fearing that ent or punish! cc forese’ sphyxiation, 5 relating to the prohibition against cruel, ment that may, it has been suggested, vrnat, harsh prison conditions, corporal 92 98 ILR 479. 93 Dugard and Van den Wyngaert (n 82) at 200-1, The . The Court in $ v Willi WI state likely to impose a sentence that ‘is SAE) wholly inappropriate or unconscionable’ (at S3F-Gi 94 Dugard and Van den Wyngaert (n 82) at 189-91. 95 : Ibid 206-8. See Robinson v Minister e and Const OSA 214 (©) at 2301 of Justice and Constitutional Development and Another 2008 Irish courts have refused extraditio ave dition where it wo Constitution. See Fhcane v McMahon 1990) 1 I, Would violate rights guarantee oe 10 (HC). 165 (HC & SC); Magee v O'Dea [1994] 118 97. 2005 (4) SA235 (CC). 96 228they might be extraditeq CONE Guanes EXTRADITION trial followed by the impositign sora Gui in South Africa to compel a the So assurance from the Zimbaby uth African over i to Equatorial Guinea, ales Zovernment thay there inter alia, to seek an would receive a fair tri ively, ‘Y Would not be extradited ss rplliso ere al in. Ex y xtradited, to se Constitutional Court ‘quatorial Guine, ek assurances that they dismi:; premature because there was nets épPlication large be extradited to Equatorial Guines in) of the applicants in Zimbab i mbabwe to Equatorial Gui judgment does, however, in the extradition proces: nea, w! : le death, aes they anticipated an unfair Y, they brought proceedings of any duty owed to them’? The Court's sive tentative sup Port to the ne , she Court sated thal suuannens: Uae if the allegations by the a Equatorial Guinea prove to volcan the to death, there will have bee ou re foreign policy and its aspirations for ademocrstin Amica. i a ¢ said that there is not a risk that the consequences that the Pee id be obit! happen. Should that risk become a reality the Government would be obliged to respond positively. Given its stated foreign policy, there is no reason to believe that this will not be done 100 : The Court furthermore stressed that ‘decisions made by the government in these matters are subject to constitutional control’! The extradition agreement between South Africa and the People’s Republic of China of 2005 contains a provision which would permit South Africa to deny extradition that might result in the violation of human rights. Article 4(b) permits extradition to be refused where ‘the probable penalty that may be imposed in the Requesting State is in conflict with the fundamental principles of the laws of the Requested State’,"0 PROCEDURE FOR EXTRADITION ‘The Extradition Act establishes two procedures for the extradition of offenders: first, the procedure for ‘foreign states’, which provides for an nau Interthe sufficiency of evidence against the offender before he is extradited secondly, 2 more expeditious procedure which dispenses with this requirement for " i ica. states’, ie neighbouring states in southern Afr —— terms in Zimbabwe, No 98 Subsequently, the applica attempt was made to extra 99 Ibid, para SO. 100 Ibid, paras 126-7. arin 101 Ibid, para 144(6). See further M du Pieter 4 realistic) PI foreign affairs: A plea for a princlpict Wo osed to the death ensure that South Africans abroad are ns 102 Supra (n 40). nts were tried and sentenced to short ‘dite them to Equatorial Guinea. Case and the supposed delicacies of Be rae to the duty of government to penalty’ (2007) 20 SAC) 143. 229yperspectiVl INTERNATIONAL LAW: A SOUTH! apRicaN PER an alleged criminal to it, in t make its request to the Minister of Justice hen notifies a magistrate of such a ct 104 In certain circumst request and the magistrate igsues a warrant Of arrest. wp iron sought to be extradit a magistrate may issue @ warrant for the arrest of @ peeae pa sa a ero instructions from the Minister,!0 but where tify . 6 Myed person must be brought before a wi Minister immediate pote as son my, which Is model ae Ser a eeinatlon. 107 This is an enquity and not a criminal tra 8 Seen a un oe in the magistrate finds that there is ‘sufficient evidenc® acrant 2 Nn the offence in the foreign state concerned’,!° he must commi p 10 prison to await the decision of the Minister with rega For the purpose of satistying himself that the! rd to his surrender. re is sufficient evidence to warrant a prosecution in the foreign state the magistrate must accept as conclusive proof a certificate issued by the appropriate authority in the requesting state, stating that it has sufficient evidence at its disposal to warrant the prosecution of the person concerned.!!! This test, introduced in 1996, represents an abandonment of the Anglo-American common rat that the requesting state make out a prima facie case of guilt against the fugitive before extradition is granted. This was pone to overcome difficulties experienced by civil-law systems which do not know the prima facie test and have difficulty in satisfying the requirements inherent in the common-law stricter test. In this respect South Africa has followed the example of other common-law countries, such as Britain and Australia.!!? In the enquiry the magistrate must also be satisfied that the request complies with the terms of the relevant extradition treaty. The fugitive has a right of Court having jurisdiction before he is surrendered.!"3 Foreign states ’ 1 Foreign states so extol south Africa reement, MUS! A foreign state wanting 103 ‘The Minister t terms of an extradition ag! through diplomatic channels f appeal to the provincial of local division of the High 103 Section 4 of Act 67 of 1962. 104 Section 5(1)(a). 105 Sections 5(1)(b) and 7. 106 Section 8. 107 an peared oe of Public Prosecutions, Witwatersrand Local Divi A °A)at para [24]; $v Mlotsha [2009] ZAG-PPH 6: 10; Abel v Minister of Justice 2001 (1) SA 1230 (C) A 1242 (para sh s@ Ma ul ea pee All soi 0 ae incre eno (ay saga ccna i ‘obinson 2005 (4) SA 1 (CC), 33. 109 See the remarks of Howie JA in h BOs per in his dissenting opinion in S v McCarthy 1995 (3) SA 731 (at 110 Section 10(1 PP, Cape of Gi Sane ee of Good Hope v Robinson 2005 (4) SA 1 (CC), the Constitution’! power to consider whether ign maglstrate conducting dn énquliy i ‘terms of s 1O(1) has Pion (oa 7) tutional rights of the person sought may be infringe! 111 Section 10(2). Geuking v President o ' ‘ ident of the RSA S 12. Secnemaey ne ain African Law one a inal n Project 98, December 199 on on International Co-operation in CAM 113 Section 13. 1998) pp 153-5, 168-70. “a 230EXTRADITION The Minister may refuse to Surrender thi gi i le fugitive wh e are pending in the Republic, where such surrender ast inal of the case be ‘unjust or unreasonable’ or heis Saath in all will be prosecuted or prejudiced at his trial in the aga gender, race, religion, nationality or 2 edings against him the circumstances person concerned 2 Associated states i me ‘nore expedite South Africa and its neighbours in southern edute is followed, 1. provides that the requesting state is not required lere the extradition agreement A ‘ to request extradition through diplomatic channels and may instead submit aw: Hiv to the attorney-eeneetineaee arrant for the arrest of the fugitive such an enquiry, The fugitive has a right ‘ourt having jurisdiction RETURN OF FUGITIVES BY MEANS OTHER THAN AN EXTRADITION TREATY 1 Deportation (disguised extradition) ‘Disguised extradition’ may be achieved by deporting a fugitive to a state in which he is accused of a crime, in accordance with deportation procedures. This Practice is widely condemned!20 as it deprives the deportee of the rights to which he would M4 Section 11. The Minister's decision is subject to judicial control: DPP, Cape of Good Hope v Robinson 2005 (4) SA 1 (CC), paras 55 and 71. "NS Malawi and Botswana qualify as associated states (S v Bull 1967 (2) SA 636 (1) at 6404: 5 y Williams 1988 (4) SA 49 (W) at 51B); but not, so it has been held, Swaziland (Minister of Justice ¥ Bagattini 1975 (4) SA 252 (7) at 256C) 16 Section 6 of Act 67 of 1962. 10’ Section 12. See $ v Bull 1967 (2) SA 636 (T) at 642-3. 8 Sv Bull (n 115) at 642D, 643B-C. his Section 13, 63; MG Cowling ‘Unmasking “di d 20 5 ; aert(n 52) at 52-63; MG Cowling ‘Unmasking “disguised ores eae at e el (1999) 109 SALJ 241. See, too, the judgment of the European Court of Human Rights in the Bozano Case ECHR Series A, vol U11, Judgment of 18 December 1986, discussed by Van den Wyngaert (n.91) at 774, 231 eeINTERNATIONAL LAW: A SOUTH AFRICAN perspective sia it deprives him of the right to raise the sed extradition is starkly illu sents by disguised extrad stra Be Dee a the Abolition of the Death Penalty ig Fo ony Tanzanian national fled to South Africa a sy in Dar es Salaam in 1998, Hie f the US embas: sider an assumed name On a visitor, be entitled if he were extradited. Inter political offence exception.'?! The threat posed to human by Mohamed v President of the South Africa Intervening).'?2 Moham after participating in the bombing ©! ti a 5 and ‘ entered South Africa on a false passport 2? ran apy the US Federal Ripa 2 s were disco visa. In 1999, Mohamed’s whereabouts wer &% Ye rn of Investigation (FBI) and it then entered into negotiations with tne Soa police and immigration authorities for the expeditious i ae rs Hei to Fe Pie ce tied been indicted for murder aris ET a ng of the US embassy. Although there was an extradition aurea aoe between, a i im to bea ‘iit the United States and South Africa, itv Ry a prohibited was decided to declare person and deport him immediately to the United States. AS a result, he was not afforded the opportunity to require the South African government to obtain an assurance from the government of the United States that, onic he would not be sentenced to death and executed. Thus he was treated differently from a co- accused whose extradition from Germany was made conditional upon an assurance from the United States that he would not be sentenced to death." The Constitutional Court held that the deportation of Mohamed violated both the Aliens Control Act of 1991 and the Constitution. The former statute permits deportation only to a country o! f which the person is a national.!74 The Constitution had been violated in that the South African immigration authorities had failed to obtain a prior undertaking from the US government that, if convicted, the death penalty would not be imposed on Mohamed: This failure infringed his rights to human dignity, to life and to not to be punished in a cruel, inhuman or degrading manner. The Court made it clear that a person ought not to be deported or extradited to another state where there was a real risk that his basic human rights would be violated in that state.!?* It stated: nt to co-operate with a foreign government to from South Africa to a country of which the fugitive is not a national and with which he had 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 For the South African governmen secure the removal of a fugitive 21 In 1962, Britain deported Dr Soblen, a citizen of the United States, to the United States (0 face a charge of espionage. Had the extradition agreement between the two countries been invoked, Dr Soblen would have been able to rely on the political offence exception: St R y Brixton Prison (Governor): Ex p Soblen [1962] 3 All ER 641 (CA); P O'Higgins ‘Disguised extradition: the Soblen Case’ (1964) 24 Mod LR S21. fh >2 2001 (3) SA 893 (CC). See, on this case, M du Plessis ‘The extra-territ ion of the : ei -territorial application 0 South African Constitution’ (2003) 120 SAL/ 797; N Botha “Denorationy extdition andl role of the state’ (2001) 26 SAYIL 227; Dugard in 2001 Annual Survey 142. 3 2001 (3) SA 893 (CC) at 912 (para 44), 914-15 (paras 52-3), i 4 Ibid 906-9. is 5 Here, the court relied on Soering v i sc 283, (2001) 40 ILM rae UK (1989) 11 EHRR 439 and Minister of Justice v Burns 2001] 232