CCT110/11

CCT126/11

[2012] ZACC 16

2012 (5) SA 467 (CC)

2012 (10) BCLR 1017 (CC)

Zondo AJ Majority judgment

Cameron J separate judgment

Yacoob J dissenting judgment

27 July 2012

http://hdl.handle.net/20.500.12144/3660

Application for leave to appeal directly to the CC against a judgment and order of the Full Court of the South Gauteng High Court: Tsebe and Another v Minister of Home Affairs and Others; Pitsoe v Minister of Home Affairs and Others 2012 (1) BCLR 77 (GSJ)

Application for leave to appeal forbidding the deportation or extradition of a person who faces the real risk of the death penalty being imposed and executed in the receiving state, where that state has not given the requisite assurance that the death penalty will not be carried out. Leave to appeal was granted, but the appeal was dismissed. The case could not be distinguished from Mohamed and Another v President of the Republic of South Africa and Others [2001] ZACC 18, 2001 (3) SA 893 (CC) (where the Court held that a person may not be surrendered to a country where he or she faces the real risk of the death penalty being imposed and executed) and that there was also no evidence that Mohamed was wrong. It would be in breach of the rights to life, dignity and not to be subjected to cruel or inhuman treatment to extradite or deport a person to a country that country refuses to provide the requisite assurance and where the person faces a real risk of the death penalty being imposed and executed. The rights enshrined in the Constitution applied to all persons in South Africa, and not only to its citizens. In a separate judgment, Yacoob ADCJ held that the High Court rightly and persuasively decided the case before it and that leave to appeal should not have been granted at all. Judgment: Zondo AJ (Mogoeng CJ, Cameron J (except for [55], [56] and [60] to [62]), Froneman J (except for [55], [56] and [60] to [62]), Jafta J, Khampepe J, Maya AJ, Nkabinde J, Skweyiya J (except for [55], [56] and [60] to [62]) and Van der Westhuizen J (except for [55], [56] and [60] to [62]) concurring). Separate judgment: Yacoob ADCJ.